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Paul Nitze: Guest Opinion

Paul Nitze
Aspen, CO Colorado

We get one crack at Sonia Sotomayor this summer ” one shot at understanding how she approaches cases, and then once confirmed she will serve out a lifetime appointment. By we, I mean the Senate Judiciary Committee. The 19 members of the committee stand in for the voters in vetting her for the U.S. Supreme Court.

Wisely or not, the Constitution shields federal judges from political pressure through the blunt instrument of lifetime appointment. That would seem to make their confirmation hearings a crucial moment to take their judicial temperature. But recent confirmation hearings have been set pieces, full of rhetoric and devoid of substance.

Hearings for Justice Alito were dominated by images of Sen. Biden wearing a Princeton cap and talking for almost all of his allotted “question” time. Rather than dig into his judicial philosophy, Democrats made hay about a picayune controversy involving then-Judge Alito’s membership in an alumni group that fought creeping liberalism at his alma mater.

Questioning of Chief Justice Roberts was even more banal. Mostly his hearings are remembered for his media-friendly metaphor about judges calling “balls and strikes.” That and his All-American good looks and glossy family.

Those hearings are just the latest evidence in support of an already well-founded argument that the judicial confirmation process has broken down. This breakdown has been the subject of countless articles in law reviews and political science journals, and even a book with the catchy title “Supreme Chaos.”

Commentators are all over the map on when this started. Some trace it all the way back to the Abe Fortas affair, when President Johnson’s nomination of his longtime friend to be chief justice was killed by conservatives who hated his decisions as an associate justice. More likely, things really got into swing when Democrats demonized Robert Bork during the summer of 1987. Even those who think Bork would have been a disaster as a justice recognize the sheer nastiness of his opponents’ attempts at character assassination.

Nowadays nominees to all federal judgeships, but especially the Supreme Court, are briefed on possible questions and trained to give the most bland, non-responsive answer they can get away with. Forget about getting a straight answer on a particular issue, like voting rights or campaign finance. Nominees are unlikely to provide direction even on the broadest questions of judicial philosophy, like how a statute should be interpreted.

When Judge Sotomayor goes in front of the Judiciary Committee next month, we have a chance to change that a bit. Only the dreamers among us could expect her to tell us what she thinks about the Constitution’s application to abortion, or euthanasia, or affirmative action. But it’s not unreasonable to hope that she might give us a bit of meat on questions of approach ” say, who has standing to sue in federal court, or when it’s appropriate to strike down an enacted statute.

There are two good reasons to hope things might go a bit differently this time around. The first is that Democrats have the votes. With Al Franken booking his one-way ticket to Washington, Democrats are about to have 60 votes in the Senate, and are already firmly in control of the Judiciary Committee. Only a serious personal or professional foible could take down Sotomayor’s nomination, and you can be sure that the Obama White House vetted her down to her dog’s last rabies vaccination.

The second is that Republicans are in perilous waters if they attack her. George Bush won in 2004 with nearly 40 percent of the Hispanic vote nationwide. John McCain, despite being in favor of immigration reform, saw his percentage of the Hispanic vote shrink by eight points. As that voter base continues to grow, a sharp attack on the nomination of our first Hispanic justice virtually ensures a second Obama term in 2012.

Would it be too much to ask that Democrats and Republicans on the committee get together behind closed doors and agree to use this confirmation to fix the system, since the outcome is fore-ordained? Doesn’t that work for both sides? It’s a desire that’s been voiced by even staunch partisans from both parties. And it’s something we’ve needed badly for a long time.

We don’t really need to fix the confirmation process so that we can understand how a judge may vote. Counterintuitive as that sounds, when someone who’s already a federal judge gets bumped to the high court, we have all of their lower court opinions as a road map. That is the case now with Sotomayor, who has authored hundreds of appellate and trial court opinions, and has been the case, more or less, with every nominee for the past several decades.

We need it because Americans are increasingly hostile toward judges. The Washington Post published a frightening article last week about rising threats to judges and prosecutors. More and more federal judges are under the protection of 24-hour security, and threats against judges have tripled. Prosecutors too. My own boss was gunned down last August, and the killer has yet to be found.

There is no excuse and no justification for this, no matter how opaque the confirmation process may be. But those of us with a connection to the federal judiciary feel uneasy about an increasingly powerful judiciary that is also less and less understood. Both from the right and the left, the federal judiciary is increasingly a tool of policymaking. The Supreme Court has been striking down federal statutes at an accelerating clip.

The way judges are confirmed may only be a small piece of this puzzle. And yet I feel that if a nominee is willing (and allowed) to give straight-forward answers to questions of substance, some of that mistrust may vanish.


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