At Sotomayor's hearing, the abortion protestors are the only ones telling the truth.

The law, lawyers, and the court.
July 14 2009 8:48 PM

Honesty at Last!

At Sotomayor's hearing, the abortion protestors are the only ones telling the truth.

Sonia Sotomayor. Click image to expand.
Sonia Sotomayor

Anyone who believes these confirmation hearings represent much beyond empty political theater should consider how meaningful these proceedings can really be when the only people speaking the truth are being systematically tackled and dragged screaming from the room. I am speaking of the abortion protestors, the fifth of which was hauled out today, shouting that Sen. Pat Leahy needs to go to confession. Each time it happens, the journalists look anxious, the nominee gets flustered, and Leahy unspools his Senate-decorum speech. But amid the half-truths and fantasies and dog whistles that compose the bulk of these hearings, I actually find the protesters quite refreshing.

Dahlia Lithwick Dahlia Lithwick

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

Consider, for example, the questioning about Judge Sotomayor's judicial record. There isn't much of it. That's partly because the Republicans think her record tells us nothing about her, since her speeches (or, rather, a single line in one speech) reveal her true judicial temperament. But even when Sotomayor is being questioned about her judicial record, the focus isn't on her legal approach or process but on the outcomes. So when she talks about her Ricci decision, Jeff Sessions asks her why she didn't apply affirmative action precedents that had no bearing in a case that was not an affirmative action case. When she speaks about Didden, her eminent domain case, Republican Chuck Grassley asks why she didn't analyze the Kelo precedent in a case about timely filing. Nobody wants to hear how she got to a result. They want to know why she didn't get to their result. Time and again she is hectored for deciding the narrow issues before her. It's like a judicial-activism pep rally in here.

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Senate Democrats are almost as confused. About half of them insist that she is a narrow, mechanical, pro-prosecution judge—the perfectly neutral umpire, John Roberts in sensible pumps. The other half utterly reject the balls-and-strikes talk, saying she's empathetic, dammit, and that's a good thing. Consider Sen. Sheldon Whitehouse, who said in his opening statement yesterday: "If your wide experience brings life to a sense of the difficult circumstances faced by the less powerful among us—the woman shunted around the bank from voicemail to voicemail as she tries to avoid foreclosure for her family; the family struggling to get by in the neighborhood where the police only come with raid jackets on; the couple up late at the kitchen table after the kids are in bed sweating out how to make ends meet that month; the man who believes a little differently, or looks a little different, or thinks things should be different—if you have empathy for those people in this job, you are doing nothing wrong." As Doug Kendall observed this morning, Democrats need to pick a horse and ride it. The alternative is Judge Sotomayor offering up a vision of herself as the world's most empathetic umpire, someone who feels deeply for everyone before coldly finding the objectively correct legal answer.

Which brings us to the nominee. She dodges, hedges, and evades her way through softball and hardball questions alike. But at least that was to be expected. She never once loses her temper today, smiling graciously whether she is praised or insulted and enduring all the crosstalk and double-talk without once looking annoyed.

Today's award for falsity goes to Sen. Lindsey Graham, who manages to both insult and patronize the nominee while promising in his sweet, porch-swing accent that he "likes her." He tells her, "There are many positive things about you, and these hearings are designed to talk about the good and the bad, and I never liked appearing before a judge that I thought was a bully. It's hard enough being a lawyer, having your client there to begin with, without the judge just beating you up for no good reason. Do you think you have a temperament problem?" Judge Sotomayor replies, "No, sir," looking ready to be sent to the naughty chair, where he more or less sends her just a moment later when he lectures that "these hearings are time for self-reflection." As Adam Serwer wrote today, "That's just not a tone of voice you using when speaking to an adult."

Sen. Graham says with a straight face today that "when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process, from different backgrounds, count me in." He says that just as he is asking a female Latina judge whether she is a bully/racist/sexist. He somehow feels that Sotomayor wants to take the law away from him and give it away to other, different people. And in that he seems to suffer from the same false assumption Eugene Robinson pointed to in his brilliant column today: "that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any 'identity'—black, brown, female, gay, whatever—has to be judged against this supposedly 'objective' standard." Sen. Graham would never have lectured Justices Roberts or Scalia about being bullies, because he thinks it's perfectly normal when men ask tough questions. He can't even see the irony in saying he welcomes wise Latina women—so long as they don't change a thing.

The reason I like the abortion protestors so much is that they come into the hearing room all stealthy and then yell precisely what they feel. It's true, everyone in the press corps now watches each new crop of civilian spectators like hawks as they rotate in; we're all wondering which sweet-faced person will erupt in a torrent of hate and rage and get dragged away. The protesters are, in a way, the mirror image of the nominee who must nod and smile sympathetically as she is insulted and second-guessed. But we'll never know what she's really thinking or even what the senators are really thinking. We all just smile and talk.

AP Video: Sotomayor Defends Firefighter Ruling

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