Supreme Court nominee Sonia Sotomayor being sworn in at her confirmation hearing before the Senate Judiciary Committee, July 13, 2009.
This week's hearings, then, are all that stand between Sotomayor and one of the most consequential jobs in American life. As a Supreme Court justice, she will be shaping national policy for years, perhaps decades, to come. Long after the president who nominated her has left the White House, Sotomayor will likely still be on the bench, wielding influence on matters ranging from property rights to labor law to free speech to criminal procedure. With the other justices, she will exercise powers nowhere mentioned in the Constitution, yet by now accepted as Supreme Court prerogatives: to strike down state and federal laws, to bind other branches of government, to constitutionalize new rights, to have the last word on the meaning of terms like "due process of law" and "establishment of religion" -- and to do it all without being accountable to the American people or any elected official.
Before the Senate consents to investing Sotomayor with such sweeping authority, shouldn't it get some idea of how she would use it? As a matter of due diligence, don't senators have an obligation to learn Sotomayor's views on the legal and constitutional issues of the day? The stakes could hardly be greater, after all, or the public interest more intense. Would-be senators and presidents lay out their positions on current controversies, often in intricate detail. Shouldn't a Supreme Court nominee, who will never again have to submit to public scrutiny, be expected to share her thinking on important judicial and political questions? How else can the Senate, or the voters it represents, decide whether she belongs on the court?
Yet Sotomayor, like previous Supreme Court nominees, intends to tell the Judiciary Committee as little as possible about her views and intentions. In her testimony yesterday, she refused to express an opinion on contentious issues. "I come to every case with an open mind," she insisted. "Every case is new for me."
That isn't true, and everyone knows it -- just as everyone knew it when John Roberts and Samuel Alito were the nominees taking the "judicial Fifth" and politely declining to give straightforward answers when asked about their stands on key subjects. When Roberts was before the committee in 2005, then-Senator Joseph Biden voiced his frustration at "this kabuki dance we have in these hearings here," in which senators ask pointed questions and nominees give ultra-cautious replies, sidestepping any discussion of the convictions they would bring to the court.
Am I suggesting that nominees should telegraph how they would vote in any pending or probable case? Of course not. Should they make commitments to uphold or overrule specific previous Supreme Court decisions? No. But neither should they be allowed to turn the confirmation process into a grave and windy nullity on the grounds that that is what judicial impartiality requires.
The Supreme Court itself has said that such "impartiality" is illusory. "It is virtually impossible to find a judge who does not have preconceptions about the law," the court declared in a 2002 case. "Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so."
Supreme Court nominees should be required to discuss those preconceptions, and to give substantive answers when asked about their legal worldview or how they analyze certain constitutional issues. In the Wall Street Journal the other day, Georgetown law professor Randy Barnett suggested some questions: "Does the Second Amendment protect an individual right to arms? . . . 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?"
It is the Senate's responsibility to check and balance the vast clout of the Supreme Court, and it abdicates that responsibility when confirmation hearings become merely an elaborate ritual for rubber-stamping judicial nominees. Too much is riding on every nomination not to demand serious answers to serious questions. Kabuki has its place, and it isn't a Judiciary Committee hearing room.
(Jeff Jacoby is a columnist for The Boston Globe.)