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

  1. Just skimming through the transcripts alone of the opening lines from the Democrats was borderline nauseous.

    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?

    No doubt the same reason Senator Al Franken now has a title in front of his name: there are idiots at work here.

    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?

    I have no idea, frankly, but Graham does have a point here. Barring an actual meltdown, as long as all the Democrats vote to confirm, that's 60 votes for Sotomayor. I wish there was a serious effort to ascertain what kind of Justice she would be, but aside from Sen. Sessions, I don't expect that kind of questioning from anybody.

  2. It might, but I sure hope not. Unfortunately, it also might not matter what the Republicans do, with the Democrats' 60 votes.

  3. Hi Shane, glad to see you are writing more on the Supreme Court!

    There are more than a few complex things going on here that confuse me as well, however I will try to help alleviate some of the confusion to the best of my ability.

    I'm afraid Mr. Barnett's article misses the mark on a few points. For instance, nowhere in the text of the Constitution is there a mention of “an individual right to arms,” rather the Second Amendment protects a collective right to keep and bear arms, to wit: “the right of the people to keep and bear Arms shall not be infringed.” Moreover, the recent precedent set by certain activists justices in D.C. v. Heller appears to have broadened this right significantly.

    As to the function of the Ninth Amendment, this can be a confusing subject, however upon some research I found a quote from Prof. Lawrence Tribe that sums up Mr. Barnett's mistake quite nicely: “It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”

    The “Necessary and Proper Clause,” Art. I Sec 8 Clause 18, does indeed delegate sweeping authority to the Congress, but it is by no means “unlimited,” if for no other reason than that the Bills of Rights and the Constitution itself serve to limit that power.

    The “so-called Spending Power” is found in Art. I Sec. 8 Clause 1 of the Constitution, though much like the Dormant Commerce Clause that permits regulation of interstate commerce, it not stated explicitly, rather it is implied by the power to collect taxes. It is essentially the other side of the coin, if Congress can lay taxes, they must implicitly have the power to spend the revenues so collected. And indeed there are sever limitations, see: Article I, Section 9, Clause 7. This is particularly curious of Mr. Barnett's concerns, since the questions that are usually associated with the Spending Power is not whether it exists but whether the Congress may place conditions on its spending to effectively bribe states into adopting legislation, as was done during the Reagan administration, withholding federal highway funds from states that did not raise the drinking age to 21.

    Furthermore, as to the Dred Scott case, there is really only one acceptable opinion from a Supreme Court nominee with respect to this decision: that that case was wrongly decided.

    As for Senator Franken's appointment to the judiciary committee, I am puzzled at that myself. Standing committee appointments are left to the respective party to decide, but they must be enacted through proper legislation. According the the judiciary committee website, the last appointment legislation was past in May, and Franken's election, if I am not mistaken, wasn't decided until later, so as far as I can tell his appointment to the judiciary committee ought to still be pending. But apparently there are forces at play of which I am not aware.

    Keep up the great work Shane!

  4. Thanks for your comment. There's no confusion I'm merely making the point through Barnett's article (and he teaches law at Georgetown University), that questions should be about clauses in the Constitution, not cases. You're likely to learn more about the nominee's judicial philosophy that way as a result.

  5. At least I know why Sen. Sessions is there: Simple seniority.

    One thing to note about the hearings is that Sotomayor had meetings with the Senators over the past few weeks. Furthermore, hear rulings place her pretty well in the mainstream. That makes the hearings pretty much pro forma, political theater. As on Senator (Graham ?) prudently pointed out, at lot of the hearing is more of debate between committee members.

  6. The hearings are necessary so we the public can know what is going on. I agree with you that they are political theater. That's why I like the questions suggested in the WSJ article.

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