A supreme farce

In case you didn’t catch day one of Sonia Sotomayor’s Supreme Court confirmation hearing, you didn’t miss much.

The Democrats, in boringly predictable fashion, waxed on about how splendid she was and how her life story indisputably strengthened her judicial credentials, all while carefully peppering their speeches with sound-bite-crafted references to judicial restraint and objectivity. No one wants to show their cards too early, after all.

Republicans, meanwhile, hesitant to throw a confirmation curve ball at the heroine of a growing voting bloc, stuck with the pro forma script condemning “empathy” as a standard for judicial judgment and subtly whittling away at Sotomayor’s “wise Latina” comment. Apparently, no one wants to sound like a partisan hack, either.

In short, the whole spectacle was a mind-numbingly civil affair, with nary a caustic word spoken. 

Unless, of course, you’re counting the pointed criticism offered by several disruptive protesters throughout the day, who all were quickly whisked away by Capitol Police.

If I were Vermont Sen. Pat Leahy, I’d say day one couldn’t have gone much better. The press was agog, the statements were well-trimmed and, again, predictable and, heck, Al Franken even made his primetime debut as the junior Senator from Minnesota. It was truly political theater at its finest.

Sadly, though, political theatrics are about all confirmation hearings can provide anymore. Ever since former President Reagan’s nomination of Robert Bork to the high court was derailed in 1987, the confirmation hearing has devolved into an exercise of political acumen, where nominees employ judicial lingo and philosophical generalities to cloak their personal opinions and evade potentially contentious issues.  

There’s even a well-established script by now. Avoid specifics. Avoid commenting on previous decisions, except something so contemporarily intuitive as Brown v. Board of Education. And try to sound knowledgeable without messily exploring issues that might reach the court. Stick to these basics, and it’s smooth sailing. 

It strikes one as a bit unfair, then, when lawmakers accuse Justices Roberts and Alito of practicing deception in confirmation hearings when, realistically speaking, they were merely excelling at the game they were asked to play.

The Bork nomination notwithstanding, Senate confirmation hearings have painted the scrupulous Supreme Court nomination process as hardly more than a political dog and pony show, complete with real-time blogging, protesters and indignant gavel-banging.
As a matter of form, the confirmation hearing could still be of service; live, unscripted inquiry can often provide lawmakers with invaluable access to the judicial philosophy and personal convictions of an individual that legal writing and academic speeches alone cannot.

Fortunately, though senators might not admit it, the confirmation hearing represents only a fraction of the serious vetting that goes into confirming a nominee. 

Even so, absent a meaningful process for engaging a nominee in person and plumbing the intricacies of his or her judicial approach, the real work that puts a senator’s vote in the “aye” or “nay” column – such as extensive examination of previous rulings and legal writing – is more important than ever.

Even if she is a “wise Latina.