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Sotomayor hearings were hardly oversight

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POSTED: August 14, 2009 11:27 a.m.
During four days of hearings into the nomination of Judge Sonia Sotomayor to the Supreme Court, the members of the Senate Judiciary Committee asked her 583 questions. Yet when they were done, we knew little more of importance than we did at the beginning.
To be sure, everyone did his or her job. Senators asked good questions about weighty issues facing this country, from gun rights to how far the executive branch can go in terrorism surveillance. Judge Sotomayor herself laid out the complex history and reasoning behind some notable Supreme Court decisions. Everything went smoothly, there were no headline-grabbing catastrophes, the Obama administration was pleased — in short, for the political establishment these were successful hearings.
Yet I found them singularly unsatisfying, and for a simple reason: despite senators’ obvious preparation and repeated attempts to learn more about Judge Sotomayor’s views, they failed to illuminate the things we really need to know about her.
This was in no small part due to Judge Sotomayor’s masterful adherence to a formula perfected by several nominees before her, including Chief Justice John Roberts and Associate Justices Samuel Alioto and Ruth Bader Ginsburg. It is an approach designed to advance an agenda shared by the nominee and the White House — to get confirmed with a minimum of fuss. It includes:
• avoiding direct responses to questions on legal issues while showing a firm command of the considerations involved;
• carefully articulating relevant precedent while declining to reveal how one feels about it;
• taking care to be unflappable and polite, answering each senator as if his or her question were the most important of the hearing;
• and claiming the high road of not answering abstract or hypothetical questions while construing as many questions as possible as falling into this category.
Above all, Judge Sotomayor — like any number of nominees before her — adhered to two myths that senators have historically been reluctant to puncture.
The first is that judges do not legislate from the bench. The truth is, judges of all persuasions do this all the time. When the law is not clear — and as a former member of Congress, I can tell you that a lot of legislation is not clear, because one of the ways Congress reaches consensus is by leaving language ambiguous — then a judge has to decide what it means. And that’s making law.
The second myth was repeatedly cited by Judge Sotomayor. Intensely aware of the tricky partisan politics around her years-old “wise Latina” remark, she maintained that judges should not exercise personal discretion in deciding cases, only the precedent of the law. Yet judging is a complex process, and smart people apply the law differently based on their own experience and opinions. In other words, they use personal discretion. If they didn’t, then every decision facing the Court would be decided 9-0.
Because the Senate Judiciary Committee was unable to break through these polite pretenses, the American people came away from the Sotomayor hearings with little idea of what kind of justice she will be, and in particular with few indications of how she would rule.
This makes little sense. The Supreme Court, whatever the official mythology, is one of the prime policy-making bodies in Washington; it makes law with every case it decides. As citizens of a democratic government, are we not entitled to know more about how a Justice Sotomayor would think about the cases before her?
To be sure, on questions she might be called upon to decide in short order, there might be legitimate cause to decline to answer questions. But that right should be exercised narrowly. On the whole, Americans would have been far better served had we been able to learn her positions on abortion, executive versus legislative power, gun rights, privacy, and a raft of other issues.
That, after all, is what legislative oversight is about, and it is why I am critical of the Senate’s current process for deciding on a Supreme Court nomination. We need to know as much as possible about the people who will fill this vitally important role in the nation’s policy-making apparatus. It is Congress’s responsibility, as the arm of the federal government closest to the American people, to ensure that we do.
Instead, by allowing itself to be persuaded by the politically expedient argument that justice is blind, the Senate has merely ensured that up to the moment a new justice actually puts on the robes of the highest court in the land, the American people will be, too.

Hamilton is director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.
 

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