Next Justice

In a 68-31 vote, with only Senator Kennedy not voting, Sonia Sotomayor has been confirmed as the 111th Justice of the U.S. Supreme Court. Full vote tally after the jump.

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In a vote that surprised no one, Judge Sotomayor was approved by the Senate Judiciary Committee, largely along party lines. All 12 Democrats on the committee voted to confirm, joined by Senator Lindsay Graham (R-SC). The remaining 6 Republican senators voted against confirmation, leaving Sotomayor with a 13-6 vote.

Republican senators, led by Senator Jeff Sessions (R-Ala.), Ranking Member of the committee, continued to criticize Sotomayor for her decisions in cases concerning race discrimination, gun rights, and property rights, as well as her speeches in which she discussed the role ethnicity and background play in judicial decision making. Senator Graham, explaining why he was voting for her, nevertheless expressed concern that she had made statements about judicial decision making while she was a judge.

Senator Coburn (R-Okla.) said he believed Sotomayor was speaking from the heart in her speeches, but he said he was voting against her not for the content of those speeches but because she did not defend her statements when challenged in the hearings. If she believed, as Coburn thought judges should believe, that her rulings would be objective and unaffected by her personal beliefs, she should not have hesitated to stand behind her statements.

Democrats for the most part praised Sotomayor’s record as a prosecutor and a judge, repeating that her judicial experience exceeds that of any other nominee in the last 100 years. They also said that her record showed that she was a fair and impartial judge. Finally, they repeated her personal story and spoke of her as an inspiration to women and minorities wanting to pursue a career in the law.

Chairman Leahy could not say when Sotomayor’s confirmation would come before the full Senate, but he said it would have to be before the Senate leaves for the August recess, since the Supreme Court is scheduled to hear an early session of oral arguments on September 9. The Senate will have several days of debate on Sotomayor, though we are unlikely to hear any new arguments before the vote.

by Ellen Ratner

The Senate judiciary hearing room in the Hart building is a monument to power in our democracy.

In a series of seats fashioned like a horseshoe, senators sit with their aides behind them. Each seat has a microphone, and the Democratic chair sits in the middle with the Republican ranking senator sitting beside the chair. Next come the still photographers, then the witness table. Behind the witness sits their family members and sometimes their advisers. In back of them are a few more rows of seats and then long tables for the press to write longhand or type directly into their computers. In back of them sit the general public.

Unlike the older Senate hearing rooms, the Hart building has special balcony-type places for the radio and television journalists so they can do their reporting while looking down on the hearing room. With all of these delicately designed ways of holding hearings you would expect more from our democracy. In fact, we got a whole lot less this week.

I am referring to the Sotomayor hearings for Supreme Court justice. This is something that the American public has been part of for years, with much of the hearing the time being boring beyond comprehension. Sure there was the Clarence Thomas hearings and Anita Hill, but, in general, the hearings are a snore. This week was no exception to the snore rule.

Our Constitution provides for “advice and consent” by the Senate (Article II, Section 2, Paragraph 2) of Supreme Court judges. This provision was a compromise between the founders who wanted a strong federal government and those who wanted a stronger legislative branch. It has become a place to address the folks at home and enrich the political platform upon which many senators operate. In fact, if you were going to teach high school civics, it would be shameful to show a video tape of the “questions” that were asked by many senators. The Republicans used the hearings this week as place to make the Democrats agenda look radical, and the Democrats used their questions as a kiss up opportunity. Our Supreme Court reporter, Jay Tamboli, a lawyer by training, just shook his head at the missed opportunity for having a real discussion about law and justice.

I was in the hearing room during the last day of the Sotomayor testimony and was pretty horrified that intelligent people were asking such dumb questions. Much of the concern from the Republican senators focused on personal experience of a judge and if it should influence decisions from the bench. They acted as if it never happens in true justice. It was hard to sit there and not laugh. A grade school child could tell you that the Supreme Court is filled with ideologies that impact on final decisions. If they had only had some basic interviewing skills, the Republican senators would have asked more probing questions that were designed to really get information. They could have asked questions like, “Tell me a time that you made a decision based on law but that you personally disagreed with the outcome.” Instead they harped time and time again to her speeches which they felt showed she would be biased in her judgments.

Then JAG military lawyer Sen. Lindsey Graham used his time to deliver a long speech about Guantanamo justice and why people who don’t play by the rules should get more trial rights than those who do. He was referring to captured fighters who do not wear a uniform of country and thereby do not fully come under the Geneva Conventions. After several minutes of Sen. Graham’s monologue, I began to wonder where is the question and what does he expect Judge Sotomayer to answer.

The point is that no one knows what a judge will do when they get on the court. Ever since Ruth Bader Ginsburg played it safe by not commenting on “hypothetical” cases, no one has been able to make headway with a potential judge. They can hide behind the fact that something might come up before the court in the future.

So, what can be done? There is no law that says there needs to be four days of hearings. If they know they have the votes to confirm, then they should hold shorter hearings and the chairman should limit it to real questions and stop the speeches.

They should put all the pro and con letters up on the Internet and let the American public call their senators with their comments. Senators should stop playing to their base with hostile or kiss-up questions. Everyone knows they accomplish nothing. Finally, we should treat this process as something that allows us to discuss important questions of the day, which could include the influence of foreign law on ours, the impact of current science on legal decisions etc. We missed an opportunity to make these hearings relevant and interesting. They turned out to be boring and dull, a missed opportunity to engage Americans in a meaningful and important process.

The committee is hearing from outside witnesses now.

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