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Expert Analysis: First Day Reveals Little

By Jonathan Adler

The opening day of Judge Sonia Sotomayor’s confirmation hearing brought few surprises, and told us very little about the nominee.

Democrats stressed her compelling story and extensive experience, developing the narrative that is Judge Sotomayor’s strongest suit. Republicans countered with concerns about her judicial philosophy, citing potentially controversial statements and rulings without committing their votes one way or the other. Democrats stressed the importance of experience and qualifications, while Republicans raised questions about what her experience and record shows.

The nominee herself was only heard from late in the afternoon, and revealed little. Her short statement repeated her life story, albeit in her own words, and gave the briefest explication of her judicial philosophy: “fidelity to the law.” While acknowledging the need to recognize the “human consequences” of judicial decisions, she said “the task of a judge is not to make the law – it is to apply the law,” she explained, stating that her record as a judge reflects that approach.

If Judge Sotomayor would not endorse the role of life experience in judging, a few of her defenders did.

Sen. Sheldon Whitehouse (D-R.I.), for one, explicitly rejected the idea that a judge is like a baseball umpire calling balls and strikes. Rather, he suggested, appellate judges and Supreme Court justices have substantial discretion in how to frame and decide cases, and the need is not for a neutral arbiter, but a jurist who “will understand, and care, how your decisions affect the lives of Americans” with particular concern for “the difficult circumstances faced by the less powerful among us.” It was the closest anyone on the Democratic side of the aisle came to endorsing the “empathy” standard articulated by President Obama before he announced the Sotomayor pick. If it is what Democrats hope for in a Supreme Court justice, Senator Whitehouse was the only one to say it.

Sen. Lindsey Graham (R-S.C.) was also particularly candid, noting that only a “complete meltdown” could keep Sotomayor off the Court. Senate Republicans will offer tough questions and probe Judge Sotomayor’s judicial philosophy as much as they can, but not to keep her off the Court. They don’t have the votes, and even if they did it’s not clear they would try to vote her down. Some believe Presidents are entitled to deference in their judicial nominees, others fear the political consequences of opposing the nation’s first Hispanic Justice. But they can try to identify the differences between Republican and Democratic judicial nominees in the hope prospective voters will agree.

In this respect, their target is not so much Judge Sotomayor, but the president who nominated her and his prospective future nominees. Barring a “meltdown,” Senate Republicans can’t stop Judge Sotomayor from becoming a justice, but they may be able to secure more favorable terrain for the future.

Jonathan Adler is professor of law and director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law. He contributes to the popular legal blog, The Volokh Conspiracy and is a contributing editor to National Review Online.

By Paul Volpe  |  July 14, 2009; 6:36 AM ET
Categories:  Outside Experts , Supreme Court  
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