The problem of the Sotomayor hearings is that they are at least as much a trial of the Republican Party as of the presumptive Supreme Court Justice. We have the spectacle of the
Republican members struggling to rationalize a symbolic vote against a symbolic candidate.
All of this must be understood in the context of the wreck of Republican ambitions to remake the Supreme Court, in their Ahab-like quest for the fifth vote to overturn Roe v. Wade. At times, as Jan Crawford Greenburg reminds us, in her excellent Supreme Conflict, the quest was less a Moby Dick tragedy than a Roadrunner cartoon.
For the Republican strategists attempted moral and political reform in the amoral and apolitical language of the law schools. They spoke in codewords that their elites knew but went over the heads of the people. All this droning on about strict construction, judicial activism, incorporation, and umpires avoids the fundamental legal and political question of justice. But such questions are forbidden by the law schools, above even $800 an hour pay grades of lawyers.
Crawford reports how the Republican insiders allowed the best to be the enemy of good, so they nixed judges like Larry Silberman and Kenneth Starr in favor of judges like Souter and Kennedy. They followed the model of the law school academic judge, Robert Bork, whose approach to jurisprudence (versus his results, I hasten to add) and to the hearings encapsulated all that is wrong in Republican jurisprudence.
In brief, Republicans have not captured the moral high ground in its battles, and now it is being routed by a hobbled woman who embodies much of the American Dream but who stands for much of the worst of the academic mind.
If Republicans want to place their confidence in majorities, whether popular or of elected bodies, then they should always remember to cite Thomas Jefferson’s First Inaugural, “that [majority] will to be rightful must be reasonable.” And Republicans hate to try explaining what reason is any more than they enjoy talking about justice, equality, and natural rights.
For the Republicans to make their hearings an occasion for public education, they need to base their questions on the political philosophy of their founding president, Abraham Lincoln. The Declaration of Independence needs to inform their approach to judging. This means not only the obvious affirmation of human equality and government by consent but also the power to conduct war successfully. Unless we know Lincoln’s resourcefulness, we won’t be able to understand a constitutional and robust exercise of the war powers. Unless equality is properly understood, the Republican criticisms of racial preference policy fall short.
The much-noted “wise Latina” wisecrack of the nominee may reflect some exotic critical legal studies jurisprudence that she would inflict on the Constitution. Despite the wise commentary of respected scholars, I am far from persuaded of such a longing and am willing to accept her explanation of the term as inspirational for the audience. (Senator Kyl pressed her effectively on this point, insisting she be clearer on the conclusion that gender, race, and ethnicity should not make a difference.) Her leftist views come from her law school education and not any ethnic agenda.
So, some questions to pose:
- Judge, your biography is an inspirational American success story. To the extent that affirmative action aided you, we stipulate that it is clearly the right kind of affirmative action. There are several types of that often controversial policy, some of which expand equal opportunity and meet constitutional muster, and others that clearly don’t, as they discriminate against some in order to favor others. As an American success story and as a student of history, how do you understand the relationship between the basic American founding documents, the Declaration of Independence and the Constitution?
- Based on your life growing up in the Bronx, how do you understand the tensions between immigrant groups, such as Puerto Ricans and African-Americans? You exhibited extraordinary discipline and self-criticism in your efforts to excel as a student. Such behavior is derided by many minority youth today. How would you speak to such disillusioned youth and their parents, to encourage their best efforts?
- What are the unamendable portions of the Constitution? Why did the Framers make them unamendable?
- Presidential proclamations (such as President Obama’s proclamation of
“National Summer Learning Day”) end with the date stated as “this sixth day of July, in the year of our Lord two thousand nine, and of the Independence of the United States of America the two hundred and thirty-fourth”—language that copies the end of the Constitution. Does such a designation tell us anything about how the Founders understood religious establishment and free exercise? About how they understood the relationship between the Declaration and the Constitution?
- In his speech opposing the Supreme Court’s Dred Scott decision, Abraham Lincoln suggested means of opposing it, while not resisting it. Was Lincoln wrong in opposing a Supreme Court decision?
- Was the Emancipation Proclamation a constitutional use of Abraham Lincoln’s war powers? How so? Does his oath of office grant him powers?
- Describe in as much detail as you are able to provide the partial birth abortion procedure banned by U.S. law and upheld in Gonzales v. Carhart.
I do not expect anyone to ask such questions (with the quite possible exception of Senator Coburn) any more than I expect Senator Franken to tell a raunchy joke or for Judge Sotomayor to burst into Rita Moreno’s America song from West Side Story. They are actually intended for the Republican members of the Committee especially, conservative activists, and those who would like to see a better understanding of the separation of powers and the institutions it governs.
Ken Thomas is a writer in Washington, DC.