Jul 15, 2009

Reflections on Supreme Court Confirmations

One would think, given that I am a (soon-to-be) student of the law, that I would be writing fervently on the Sotomayor confirmation hearings. Instead, I have remained stunningly silent--choosing to write about cars run by pee and academic bias. Why?

Well, the reasons are twofold. The first is simple: I've been too busy to watch the hearings. On Monday, I was flying back from Washington, DC at 5am and finishing up a lot of work before leaving for El Paso, TX on Tuesday, where I shall remain until tomorrow. All that makes for little time to sit down and read the news or to watch C-SPAN.

However, the second is more nuanced. That is, surprising as it may be, that I can't stand confirmation hearings. I think that they are one of the biggest wastes of time in the spectre that is American politics. Not that they have to be; senators could spend their thirty minutes asking questions instead of talking about themselves and the nominees could answer those questions instead of demurring for whatever reason. For every hour you watch of a hearing, you gain at most a tiny grain of how the potential justice thinks. Listening to John Roberts, you gathered that he wanted to judge based on the law, however disconcerting the outcome. With Sotomayor, we can know that she will act on precedent--particularly that of Roe and its progeny. What more, we are unsure, though in the same way that we could assume Justices Roberts and Alito would come down on the conservative side 95% of the time, we can assume Sotomayor will do the same on the liberal side. Will she be a David Souter--a pariah to the system of belief that nominated her? Unlikely.

I read a column this morning on the Sotomayor hearings by Dahlia Lithwick. Her articles are like car accidents (or for the more uppity amongst us, the story in Plato's Republic of Leontius)--I can't bear the look, but I can't keep myself from doing so. It wasn't particularly insightful (since it was more about how she thinks Republican senators are really stupid and Democratic ones are just annoying). However, it led me to look for her writings on John Roberts and his confirmation hearings. What I found was an excellent piece.

She wrote about what she dubbed 'law-plus'; that which is the difference between the Law of the Land and, what she didn't term, but would probably accurately identify as 'Justice'. The Roberts hearings brought her to question the very nature of the system: is it the role of the Court to apply law--fair or unfair as that law may be--or to apply Justice? She left the question hanging, but I think it is fairly obvious. The role of a Court, as an unelected, unpolitical body, is to apply the law of the people, enacted through their representatives. Congress should be given great deference on interpretation of statutes, except for those that run aground of the Constitution, where the Court has the authority to keep Congress from overreaching (see, e.g. 1st Amendment: "Congress shall make no law..." Who stops them from making the law when they try? John Marshall claimed that prerogative, correctly in my mind, for the Court). Justice is not for the Court to decide. Justice is for the people to decide. A law that unfairly harms one--though is faithful to the Constitution--is not to be struck down by the Court. It is to be struck down by Congress when the people decide that they no longer support it. I'm open to other interpretations, but for what it's worth, I'd rather take a society that constantly, though imperfectly, seeks to find what Justice is amongst its citizens than one that has nine unelected people determine what it should be.

So, that is an incredibly long and involved post explaining that a) I haven't had time to pay attention to the hearings and b) I think they are simply theater for Senators to be preachy.

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