YouTube and the Supreme Court nomination.

The law, lawyers, and the court.
May 8 2009 6:44 PM

The YouTube Confirmation

What Supreme Court shortlisters are saying when they think nobody is listening.

Within days of the announcement that Associate Justice David Souter would be leaving the Supreme Court, court watchers were drafting their shortlists of jurists, academics, politicians, and appellate lawyers most qualified to fill his hiking boots. And in contrast to the last round of Supreme Court confirmations—of Chief Justice John Roberts and Associate Justice Samuel Alito—now we can evaluate the candidates from the comfort of our own homes, without ever cracking the spine of a law book.

Let the YouTube confirmation wars begin.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals is already garnering more than her share of unwanted video attention because of an unguarded moment in which she chuckles delightedly that the appeals courts make policy, something judicial conservatives have long suspected about these dangerous "liberal judicial activists." Then in the clip, Sotomayor compounds the problem by regretting that she said it on tape. And compounds it again by laughing even harder. Upon viewing this clip, Sen Orrin Hatch announced promptly that Sotomayor's statements would be a problem for her if she were nominated for the Supreme Court. It probably won't be, but it's a good lesson for future Supreme Court hopefuls: Never say what you really think.

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We wondered whether the tides of YouTube would wash up dozens of similar "oopsies" for the shortlisters. So working from Slate reader's top picks for the Souter seat and viewing hours of YouTube footage, we went to work on a video safari. I confess that I unearthed no macaca moment. (Sotomayor's gaffe is not even close, even if Hatch wants to bluster about it.) In fact, when I started reviewing the clips of the candidates, the most striking thing I discovered was that you can sometimes learn a lot more about judges and academics and politicians—about their temperaments and how their minds work—from watching video than from merely reading their writing. And you can discern a lot more about who they really are on YouTube than you ever will watching their confirmation hearings on C-SPAN, when their amiable, perfect jurist mask has hardened completely.

Take former Yale Law School Dean Harold Koh. There are many hours of footage of Koh talking about international law to be found on YouTube, and the enduring impression is of someone with a very deep knowledge of and respect for the subject. Here is a snippet of Koh explaining the need for clear, stable legal rules, by way of a fantastic metaphor about allowing his son to borrow the car. It's worth watching this clip of Georgia Chief Justice Leah Ward Sears all the way through before you decide she's too bullish on marriage for your tastes. She has done her homework, and she's heard a lot of cases. Now watch how graciously she handles the Q&A (especially the guy who wants to put birth control in children's orange juice).

Meantime, you'll learn virtually nothing legally relevant about Michigan Gov. Jennifer Granholm from watching her YouTube clips, even though there are many. Gov. Granholm is clearly not one to be bullied. She's passionate. She's smart. She has empathy. She sounds Canadian. She may be a "transnationalist." The president thinks she's good-looking. And she believes in grrrrrl power. (That last fragment will go over huge on the judiciary committee someday.) What any of this suggests about the sort of justice she might be, well, I have no idea. Cute glasses, though.

This clip of Kathleen Sullivan, the former dean of Stanford Law School, illustrates why so many of her students (myself included) find her to be the sharpest, clearest constitutional thinker around. She is brave and funny and makes using the law to protect minorities sound appealing for a change. Also, she looks good in a lei. The same can be said of Sullivan's Stanford colleague Pamela Karlan. This video shows her calling a spade a spade when it comes to the Supreme Court's evidence-free abortion jurisprudence. It may not be the kind of video that wins over any hearts and minds on the GOP side of the judiciary committee. But clearly Karlan and Sullivan are comfortable enough to say what they mean and smart enough to make you think harder. Harvard's Martha Minow is another brilliant and eloquent pick for the court. This clip gives you a feeling for her thinking on international human rights and for her thoughtful, measured approach.

Not one nanosecond of footage is to be found of 7th Circuit Judge Diane Pamela Wood, probably because she's smart enough to avoid the cameras. (We're counting on you to post them!) Then again, Solicitor General Elena Kagan proves that you can give many, many speeches and never say anything potentially embarrassing. Kagan's speech-to- gaffe ratio on YouTube of, oh, about 983 to 0, must be unprecedented and is singularly impressive next to Sotomayor's 1:1. Kagan comes across as humble and agreeable and utterly generous about crediting others. Perhaps the fact that there is not a single uh-oh moment to be found in Kagan's entire YouTube file suggests that she is indeed the perfect nominee.

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