Confirmation Hearings Confirm Biases (A Post Including A Short Book Review)

I’ve just finished reading Jeffrey Toobin’s book The Nine. In it, he paints a series of pictures — moments in time in the institutional history of the Supreme Court, shifting focus between the political dimensions of the Court’s work and the personalities and experiences of the individual Justices at the center of them. The picture one is left with at the end of the day is that of a very odd institution, one which seems to attract mentally gifted but highly eccentric people into its key positions.

Toobin is not quite explicit about his thesis, but it is right there under the surface like a goldfish eating food floating at the top the aquarium: the Court’s decisions are the results not of study and deliberation on the law but instead are the sum total of the personality flaws of the individual justices, flaws which include political biases. Toobin also makes almost no bones about portraying the liberals on the Court as the good guys, the sentinels fighting a rear-guard action to protect the mighty triumphs of civil liberties and individual rights of the Warren Court, and reduces the entire efforts of conservatives as an effort to co-opt the Republican Party with the explicit and overriding goal of packing the Supreme Court with enough votes to overturn Roe v. Wade.

The result, as he describes it, is a court made up of judges who are all unprincipled activists; the question is not whether they will overturn precedent they find personally distaseful and seek a legal justification for doing so after the fact, but rather whether a majority of them wish to do so. It is legal realism of perhaps the most cynical sort.

Toobin’s book ends with a portrait of conservatives ascendant after a twenty-year struggle, and liberals sputtering in protest. Any careful reader of the book itself is aware that in fact,the picture is considerably more complex than that, and more to the point, will be aware that the political tides appear to have shifted from the re-election of President Bush in 2004. One of Toobin’s explicit claims is that despite the Court’s undemocratic nature, it does track the political mood of the country with remarkable alacrity.

It is with this book fresh in my mind that I note the beginning of hearings leading up to the vote to confirm the appointment of Sonia Sotomayor to the Supreme Court.

First of all, we should bear in mind that Judge Sotomayor has left something of a record in the form of her judicial opinions. Her judicial philosophies are knowable and do not think for a moment that the White House has not read every opinion she has ever written. Or that the Senators evaluating her today have not, either. The questions she will be asked about them do not matter — each and every Senator on that committee has made up their minds already, based on what she’s written.

Secondly, the Supreme Court handles two kinds of cases: cases involving challenges to abortion rights, and every other case the Court handles. The confirmation process has become transformed into a political kabuki about only one of those two kinds of cases. Toobin points out, from the Alito confirmation hearings, the highly odd spectacle of every Senator on the Judiciary Committee giving a short speech about his or her opinion on abortion, and the nominee — the only one whose opinion counts for anything — sitting there saying nothing substantive in response out of ostensible concern for “pre-judging” a case that might come before him. We will almost certainly see a similar spectacle with Judge Sotomayor’s confirmation, only the direction of the political wind will be opposite that of Alito’s confirmation.

And finally, while the politics of the confirmaiton process are chiseled in stone and the result pre-determined, there is importance to the process. It is something of a test of the ability of Democrats to discipline themselves and run the Senate as they see fit. We may actually learn something interesting about Judge Sotomayor that we do not already know. We may get a sense of her personality — the collection of quirks, eccentricities, displays of brilliance, and neuroses that seem to be the trademark of the singular set of personalities in question. She, like her eight Brother and Sister Justices, is much more than a figure in a black robe. And if Toobin is right, those personality traits, for good or for ill, are what will matter most in her decisions — particularly in the second category of “everything else,” including matters of criminal procedure, enlargement of executive power, reconciliation of conflicting state and circuit cases, and free speech and religion rights.

I’ll say that Judge Sotomayor appears to be of exceptional intellectual ability and has the sort of background one would hope for. I’ll say that I understand the political pressures the various Senators are under — and if I could, I’d remind them that they asked for this job. But aside from that, I’m not going to take sides in this confirmation battle. That would be like taking sides against the wind.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.