Final thoughts on the Sotomayor hearings

In no particular order, some final thoughts on the Sotomayor hearings. Start with the obvious: There will not be a filibuster and she will be confirmed handily (65-67 votes).

First, what are the chances that some GOP House member (likely a far-right backbencher looking to make a name for himself) argues that the House should impeach Justice Sotomayor? Might it happen just after she writes an opinion (probably within the next two years) that cites to foreign or international law or that supports an affirmative action program or that refuses to recuse from the non-Maloney Second Amendment incorporation case? This seems like the next step in the evolution of nasty confirmation politics. The hearings no longer provide any check on the President’s appointment authority; after Bork (and to a lesser extent Thomas), no nominee ever says anything beyond the sorts of bland platitudes we heard from Roberts and now Sotomayor; no one will say anything controversial (or meaningful) enough to give a critical mass of Senators (including Senators from the nominating President’s party) grounds to vote against her. And getting "tough" (or nasty) in questioning has become popularly counter-productive--as Republicans saw this week and as Democrats saw in 2005.

So what congressional check remains on these runaway activist judges? Impeachment. And, of course, the House member will not argue for impeachment because of Justice Sotomayor’s decisions (the line no one dare cross, post-Samuel Chase). Rather, it is because her actions on the Court are contrary to what she swore under oath to the committee. She cited foreign law when she told the Committee there was no constitutional warrant for doing so (although I explained yesterday why her answer studiously avoids this charge); she upheld affirmative action, which shows her letting her personal feelings as a "wise Latina" interfere with her decisionmaking. Obviously, the effort will not go anywhere. But it is a bad rhetorical road to even start down.

Second, have we bottomed out? Have the hearings devolved to such a low-level of discourse that the public will demand more—from both the nominee and the committee members from both parties—the next time? After all, if there is a consistent theme to all the coverage, it has been how inane and meaningless it all has been.

I keep relating this to the issue of past drug use by public officials. In 1987, marijuana use derailed Judge Douglas Ginsburg’s nomination to the Supreme Court (granted, the problem was that he was doing it with students while a law faculty member) and I seem to recall some controversy around members of Congress for past use. And I remember arguing at the time in a college course on the news media that, with the Baby Boomers (most of whom used pot in college, if not into young-adulthood as the only way to survive Disco) coming to political power and beginning to constitute an electoral force, this would be the last time that marijuana use could derail political ambitions. I was wrong as to timing. In 1992, Bill Clinton had to resort to a ridiculous lie to avoid the (believed politically damaging) admission that, duh, he smoked pot while going to college in the late 1960s. But by 2000, George W. Bush’s adult drug use was off-limits for the media and by 2008, no one blinked about Barack Obama’s admission in print of his youthful drug use.

So could this hearing be the judicial-confirmation equivalent of “I never inhaled,” the moment that pushes the public over the edge into demanding an honest and coherent discussion of judging, the courts, and the law? Into defined, non-buzzword questions and substantive answers? I am not sure. It might have been if the Democrats this time had pushed back on the Republican narrative about courts and judging, so that Judge Sotomayor had cover and the controlling theme was not “judging is passive mechanistic application of precedent”. As Dahlia Lithwick put it:

Democrats also came into these hearings with nothing to lose. They were going to seat this nominee, tee up the next two, and school the American people on why the Supreme Court matters and how it's letting them down and explain why balls and strikes are half the equation. They opted not to. When you think of it that way, beyond just being a waste of time, these hearings were also a waste of a thousand opportunities.

If Dahlia is right, that means the hearings on Obama’s next two nominees will be just as hard to watch as this one. Unless the Democrats finally find a judicial vision that they can voice for the public (which Dahlia doubts).

Third, President Obama could get three appointments this term (putting aside whether he is re-elected in 2012). So who’s next? I am guessing Elena Kagan (now having had a couple years as SG) and Diane Wood (believed to have been runner-up this time). Both likely will be less controversial (no "Wise Latina" albatross, no potential for race-baiting, and having Richard Posner and Frank Easterbrook or Jack Goldsmith, respectively, for support). Although, ironically, both may be more judicially liberal than Sotomayor. Thoughts?

[Cross-Posted at ACSBlog]