You have to love Senate hearings of any stripe. The questions are speeches. Senators bloviate, etc. etc. About as exciting as watching paint dry. With Senate Judiciary Committee hearings on Judge Sonia Sotomayor’s nomination to the Supreme Court starting today we can expect… no better. Speeches in the forms of questions. Political posturing asking questions that really shouldn’t be answered by a Supreme Court nominee.
Some thoughts about today… it was a Democrat love fest. Yes, she overcame adversity. Yes she has a remarkable story. Yes she has the right credentials to be nominated.
The Republicans will surely ask her about the “wise Latina woman” and judges “setting policy” remarks as the hearings go on.
Random thought as well, why the heck is Senator Al Franken (D-MN) (I still can’t type that with a straight face) on the Judiciary committee? Also, what was Senator Lindsay Graham (R-SC) thinking, saying basically that she’ll be confirmed unless she implodes, and he doesn’t think that is likely? A confirmation shouldn’t be a forgone conclusion, and she should explain some of the controversial remarks that she has made. Also the fact that a number of her decisions have been reversed is troubling as well.
Randy Barnett in the Wall Street Journal shares some questions that should be asked by the Committee, but likely won’t be:
Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment "incorporate" the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?
Don’t ask how the meaning of these clauses should be applied in particular circumstances. Just ask about the meaning itself and how it should be ascertained. Do nominees think they are bound by the original public meaning of the text? Even those who deny this still typically claim that original meaning is a "factor" or starting point. If so, what other factors do they think a justice should rely on to "interpret" the meaning of the text? Even asking whether "We the People" in the U.S. Constitution originally included blacks and slaves — as abolitionists like Lysander Spooner and Frederick Douglass contended, or not as Chief Justice Roger Taney claimed in Dred Scott v. Sandford — will tell us much about a nominee’s approach to constitutional interpretation. Given that this is hardly a case that will come before them, on what grounds could nominees refuse to answer such questions?
Of course, inquiring into clauses not cases would require senators to know something about the original meaning of the Constitution. Do they? It would be interesting to hear what Sen. Al Franken thinks about such matters, but no more so than any other member of the Judiciary Committee. Such a hearing would not only be entertaining, it would be informative and educational. After all, it would be about the meaning of the Constitution, which is to say it would be about something.
Questions like this would tell us just how much Judge Sotomayor and the members of the Senate Judiciary Committee actually knows about the Constitution. That could be either very enlightening or very frightening.
HT: Jeff Angelo