What a WasteThe Sotomayor hearings were a mass of missed opportunities for Republicans and Democrats alike.
Posted Wednesday, July 15, 2009, at 6:54 PM ETSee Slate's complete coverage of Sonia Sotomayor.
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StumbleUponIt probably didn't help that Sotomayor threw empathy under the bus yesterday when she repudiated President Obama's never-to-be-spoken-again standard for the quality he most seeks in a jurist: "Judges can't rely on what's in their heart. ... It's not the heart that compels conclusions in cases; it's the law." I have my own doubts about the utility of the word empathy in describing what's lacking on the Roberts Court. I worry that it is too malleable to be useful and too easily caricatured. In certain ways, the empathy standard set Sotomayor up for the very attacks she has garnered—she's too emotional, too prejudiced to be fair. No wonder she torched it. Her only job here was to get confirmed.
But at least Obama's empathy standard was a start toward articulating a liberal judicial theory. Now Senate Democrats are back at the drawing board. Writing with cheese.
So consider this: Republicans came into these hearings with nothing to lose. They were never going to block this nomination, but they could have used these days to make it clear they are not the party of Rush Limbaugh and Joe the Plumber. They could have questioned Sotomayor about her record, her views, even asked a tough question or two about wise Latina women. They opted not to.
Democrats also came into these hearings with nothing to lose. They were going to seat this nominee, tee up the next two, and school the American people on why the Supreme Court matters and how it's letting them down and explain why balls and strikes are half the equation. They opted not to. When you think of it that way, beyond just being a waste of time, these hearings were also a waste of a thousand opportunities.
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In his confirmation hearing, Robert Bork said that the reason he wanted to be on the Supreme Court was to participate in the "intellectual feast" that judging on that Court provides.
Empathy, at least as I understand it, is the opposite of that.
It is the need to recognize that judgments involve real people. It is not an intellectual exercise or a debate. Does this mean that realizing that people are involved dictates a particular decision? Of course not. It does mean that seeing things only in disinterested abstractions, as supposedly is done by an umpire, is just not good enough.
-- alanhpolonsky
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The Dems also dealt with criminal defense issues (Sen. Durbin was most passionate; Klobuchar saw things a bit from the prosecution side too), campaign finance (Feingold, obviously), executive power (Feingold, Specter, etc.), congressional power (Specter), business issues (one or two of the lesser known Dems asked important if somewhat arcane questions here), voting rights, searches/seizures and even net neutrality (Franken, starting off a bit roughly). Most had at least somewhat of a lib slant. A constitutional vision was suggested.
The senators also provided an answer to the 'balls and strikes' simplicity. As Specter noted, the concern for "empathy" or use of her experience was much ado about nothing really since it is not really controversial that such things in some fashion affect judging (Specter listed a stream of justices who raised comments of this nature during their hearings). Whitehouse and Franken (the former in his intro -- Whitehouse was elsewhere talking about health care, so his focus might have been split) challenged the stereotypes about 'balls and strikes' and 'activism.' They put forth a more complex view of how the law works. Some also challenged the Roberts Court overall, including cases they didn't decide, the partial birth abortion case, etc.
I agree that the senators could have done a better job here. They had a limited focus in various ways, maybe a reflection on the nominee herself -- a safe somewhat mechanical jurist, whose more interesting comments are deemed not vanilla enough to risk really dwelling upon.
-- Joe_JP
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