As I noted earlier today, and indeed on the day that President Obama nominated her, it’s fairly clear that Judge Sonya Sotomayor will be confirmed to be an Associate Justice of the Supreme Court. To put it bluntly, the Democrats have more than enough votes to confirm even if every Republican votes against her; and it’s fairly certain that at least 10-20 Republicans will end up voting to confirm her in the end.
For this reasons, the confirmation hearings that start today are pretty pointless and are likely to be marked more by political speechifying than any real substantive discussions about Constitutional law.
As Randy Barnett notes in today’s Wall Street Journal, though, it doesn’t have to be that way:
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.
Indeed.
Will this happen ? Probably not. The Democrats will fawn over Sotomayor and do everything they can to protect her. Republicans will jump on the “wise Latina” comment and, mistakenly, use the fact that the Supreme Court narrowly reversed her in the Ricci case to argue that she’s outside the mainstream.
And, oh yeah, they’ll talk about that phoney bugaboo, “judicial activism:”
[W]hat exactly is “activism”? Is it activism when any popularly enacted law is held unconstitutional? Neither Democrats or Republicans truly believe this, however, since they want judges to strike down laws as unconstitutional when doing so leads to the ["]right result["] (but not when it doesn’t). So judicial activism means thwarting the “will of the people” when critics agree with the people, while they complain about the “tyranny of the majority” when they disagree.
Or to put it more bluntly — for Republicans “judicial activism” means voting to uphold Roe v. Wade, for Democrats it means voting to strike it down.
