Submitted to a Candid World

Judge Sotomayor concluded her testimony before the Senate Judiciary Committee this week, with every sign that she’ll be confirmed handily, with Republican support, even. But for those of us with knowledge of the legal system, or even a decent respect for the process of judging, the hearings were a painfully dull exercise, full of all the dull evasion that’s come to typify every confirmation since Justice Thomas’. Indeed, the enduring result of those hearings, famous for their vitriol and tabloid value, may be the utter intellectual poverty of the modern Supreme Court confirmation hearing, where judicial nominees can do no more than affirm their commitment to impartiality, while avoiding any attempt to explain what that means, for fear of setting off the private little war that so tarnished Justice Thomas.

It’s too bad. The confirmation of a Supreme Court justice could be a valuable chance to explain to the public what the Constitution means in the modern world, and a chance to expose the right’s shallow talking points for what they really are. Instead, we’re forced to endure what Professor Tribe calls the equivalent of kabuki theater — all spectacle, no substance.

But, what would an honest, fully candid Supreme Court confirmation hearing look like? To quote another professor (Farnsworth, on the “fing-longer”), man can only dream. This, then, is one man’s dream:

J. SOTOMAYOR:

OPENING STATEMENT: Senators, it is a rare honor and a privilege to have the chance to speak with you today. In the ancient world, men and women the world over looked to the Roman Senate for aid and enlightenment on the issues of the day. As the United States has exceeded Rome in the freedom it affords its citizens and even its foes, so this chamber exceeds the republican Senate in openness and accessibility.

Accordingly, mindful of the greatness of the assembled individuals and indeed the nation that I address, it is not my intention to obfuscate or conceal, for my benefit or yours. Far too often we speak delicately, with candor decreasing as the weight of the issues in play increases. Let me say plainly, this trend cheapens all of us. If you are to live to your reputation, you should question me fully; if I am to live up to mine, I should answer honestly. I intend no less.

From the tenor of debate, I expect you to question me about my “impartiality.” Americans expect their judges to apply the law neutrally, and in my years on the bench, I have done no less. But let us dispense now with the pretense that the law is apolitical. Truly, neither “liberals” nor “conservatives” believe it to be. Indeed, although the Constitution seeks to minimize the politicization of the bench (hence lifetime appointments), politics is unavoidable. On the great questions of our day, the Constitution is silent. What Founding Father could have conceived of the dangers and benefits of warrantless wiretapping, or cloning? When adjudicating novel questions of constitutional rights, Supreme Court justices can never find a complete answer in the document itself. Thankfully, though, the Constitution’s greatness, and its drafters’ ingenuity, lies not in the document’s substantive completeness, but in its basic framework. The Constitution declares abstract values, and sets out a structure through which they are to be realized. From this framework, judges balance, imply, infer, reason, and apply, always striving for an answer that resonates with the document’s basic premises.

Often, constitutional values point in different directions. The Constitution gives the President broad authority to respond to imminent dangers to the state. However, the President cannot declare war. How are we to reconcile these seemingly irreconcilable ideas?

There is no mechanistic way to answer this question. In selecting the theory of decisionmaking to employ (Originalism? Textualism? Intentionalism? The list goes on), and the factors that inform the theory, there is necessarily an act of judgment, in which one’s opinion of the relative weight of relevant constitutional values in play ought not be, indeed cannot be, irrelevant. Judges will weigh factors differently, and there’s no use in denying that fact. Justice Scalia, for example, values the historical pedigree of legal norms; the late Justice Brennan, on the other hand, looked to the degree to which the same theories comported with modern notions of justice and “fair play.”

Some will call this acknowledgement of the subjectivity inherent in the judicial process an embrace of “activism.” It is not. Rather, it is an attempt to honestly acknowledge that judging has a human element. We all strive for neutrality and constitutional fidelity; if we fall short, this can be evaluated or criticized on a case-by-case basis, but few mainstream judicial ideologies — none of which I espouse! — are inherently and deliberately unfaithful to the document.

Because judging is a human act, it is important that you understand the balance I accord to different constitutional values. It would be improper for me to comment on particular cases, but I will happily answer questions in the abstract. For example, I firmly believe that the Constitution does protect a zone of individual privacy. It’s hard to read the Bill of Rights and not see the word in the structure and effect of the individual amendments, just as it’s hard to read the Constitution and not see the phrase, “states’ rights.” Similarly, while I don’t believe that sympathy for an individual litigant is ever relevant to the process of judging, a judge ignores at her peril the Framers’ conscious decision to protect minorities from the caprice of majorities. The “tyranny of the majority” was a problem in democratic theory of which constitutional drafters from Jefferson to Bingham were well aware.

I thank you for your patience, and your indulgence in this admittedly atypical opening. The world is watching, and I urge you all to take this chance to speak not to your individual party bases, but to the American people in general, and the world at large. I will endeavour to do the same.