Senators at today's hearing were determined to cast Sotomayor as over-the-top. Why didn't she fight back harder?

The law, lawyers, and the court.
July 13 2009 7:00 PM

She's Come Redone

Senators at today's hearing were determined to cast Sotomayor as over-the-top. Why didn't she fight back harder?

To hear the senators talking, their overwhelming impression of Sonia Sotomayor on this first day of her confirmation hearings is that she is Just. Too. Much.

Sotomayor herself feeds that impression off the bat by confessing to the committee that she has brought along too much family—or what she describes as "familylike" people. If she were to introduce the whole pack of them by name, she says, "we'd be here all morning." Sen. Patrick Leahy, D-Vt., then tries to turn the judge's Too Muchness into an asset by trussing up Sotomayor in superlatives. "She has more federal judicial experience than any nominee to the Supreme Court in 100 years." "She is the first nominee in well over a century to be nominated to three different federal judgeships by three different presidents." We hear over and over that to be the first requires being "the best." Sen. Kirsten Gillibrand, D-N.Y., promises that Sotomayor will go on to be "one of the finest justices in American history."

Dahlia Lithwick Dahlia Lithwick

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

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Her Republican critics, for their part, also paint the Supreme Court nominee as outsized, forever spilling out of her confines. In their mouths, of course, this larger-than-life-ness is monstrous. Sen. Jeff Sessions, R-Ala., points out that Sotomayor's "background, gender, prejudices, or sympathies" could sway her decisions. Sen. John Kyl, R-Ariz., warns that the judge's statements "suggest that she may allow, and even embrace, decision-making based on her biases and prejudices." Sen. Chuck Grassley, R-Iowa, quotes a speech in which she argued that "it's a disservice both to the law and society for judges to disregard personal views shaped by one's differences as women or men of color." If the whole theme of the John Roberts and Samuel Alito hearings was that Democrats worried these men were seriously lacking something (heart, soul, humanity), the whole Republican attack on Sotomayor turns on the opposite kind of accusation. They make her froth, teem, and bubble over with excess gender and race identification, such that prejudice and bias will inevitably follow.

Sen. Lindsey Graham goes out of his way to frame his critique in terms of Sotomayor straying even beyond the bounds of her temperate judicial record. "It bothers me when someone wearing the robe takes the robe off and says experience makes them better than anyone else," he says, referring to Sotomayor's much-invoked comments about the virtues of being a wise Latina. If you think about it, the judiciary committee is playing out a meta version of the fight that happens every day at the court. Republicans typically say they want their judges humble, restrained, and able to fit comfortably in the overhead bin. Democrats want their judges to be the stuff of legends; hence all the references today to Thurgood Marshall and Oliver Wendell Holmes. Sonia Sotomayor's task is to stake out a space for herself somewhere in between.

The senators also use their time to show that they have a cold, mathematical formula for why this nominee may not be cold and mathematical enough to judge. They lay out their respective neutrality tests. Jeff Sessions tells us that he will not vote up or down on the nomination solely based on Sotomayor's record, because it does not tell us what will happen when "the judge's philosophy will be allowed to reach full bloom." Orrin Hatch, * R-Utah, describes a test for judicial fitness that's so scientific it was published in the Harvard Journal of Law and Public Policy. Sen. Grassley says he will be "asking about your ability to wear that judicial blindfold."

It would be far more honest, if politically ruinous, for all the senators to do precisely what Judge Sotomayor has done and jettison the calculus to admit that it's very difficult to separate one's personal politics from ideology. She said, in her famous 2001 Berkeley speech: "I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage." Sen. Russ Feingold, D-Wis., commends this speech today as a "remarkably thoughtful attempt to grapple with a difficult issue not often discussed by judges: How do a judge's personal background and experiences affect her judging?" But nobody else wants to hear this judge grapple with her preconceived ideas, even if she is pledging to rise above them.

I am reminded today, as Sotomayor is serially assaulted for her alleged bias, that the last time I covered a judicial confirmation hearing, I was in a daily, miserable personal panic. I had a new baby and every 10-minute break became a frantic search for 12 ounces of fruit juice and a place in the U.S. Senate to plug in a breast pump. I don't think I'm biased in favor of the average breastfeeding news correspondent. It's just that a Wise Lactating Woman might just have some thoughts about structuring the breaks in the daily confirmation schedule that don't always occur to even the wisest men. Sen. Amy Klobuchar, D-Minn., makes this point today when she ticks off the backgrounds of her colleagues on the committee, arguing that nobody is biased. They just have different backgrounds. And when Ruth Bader changed her colleagues' minds in a strip-search case, she wasn't infecting them with her bias. She was just explaining something new.

Here's my own test: Empathy—the judicial attribute that the president has invoked and his opponents have derided as bias—means knowing what you don't know and being willing to listen to things that never occurred to you. That's why the only really important part of Judge Sotomayor's brief opening statement today is her explanation that when she writes opinions, she lays out the law and then explains why on behalf of the court she either accepts or rejects the contrary position. It's her way of saying she listens to both sides. Maybe all that extrajudicial empathizing makes her too large for the overhead bins. But I think she's talking about the same "open mind" Justice Alito touted at his hearings—and that's why that statue of blind justice has two scales instead of an electronic step-on scale that talks out loud.

I confess that despite the fact that it lacked anything memorable, beyond the emotion, I wasn't disappointed by Judge Sotomayor's terse, bare-bones opening statement today—a statement in which she did little more than lay out her autobiography and pledge "fidelity to the law." Yes, it was dispassionate. That's probably a good thing when your opponents believe you're too excitable. Yes, it was spare. That's a good thing when your critics celebrate minimalism and humility above all things. Given how often Sotomayor was accused of being hugely, inappropriately larger-than-life today, going tiny may have been precisely the right way for her to play it.

AP Video: Sotomayor's Statement

Correction, July 14, 2009: This article originally misspelled Orrin Hatch's name. (Return to the corrected sentence.)