Legal News

Guest Perspective: Not Clear If Anything Was Accomplished

By Jennifer Forsyth

Editor’s Note: This is the second in a series of guest reviews on how Sotomayor performed during the hearings. This comes from Erwin Chemerinsky, dean of University of California, Irvine, School of Law.

Judge Sonia Sotomayor said what she needed to during her confirmation hearings to ensure her confirmation to the Supreme Court. She followed the script that every nominee for the Court since Robert Bork has used to success. She presented herself as a moderate who believes that "judges apply, not make the law," and she demonstrated her thorough knowledge of constitutional law, while refusing to give any sense of how she will rule in specific cases. Countless times she refused to discuss particular issues, especially controversial ones, because they might come before the Court. This approach worked most recently for John Roberts and Samuel Alito and it will work for Sonia Sotomayor.

She went out of her way to reassure Republicans that she will protect private property rights, that she believes in gun rights, and that she doesn't really believe that a "wise Latina" is a better judge than white men. She said that constitutional decisions should not be based on foreign law. That obviously won't be enough to please some Republicans, like Senators Jeff Sessions and Tom Coburn, but it is hard to imagine anyone President Obama who realistically could nominate who would get their vote.

As with the Roberts and Alito hearings, it is not clear what all of this accomplished. It reinforced a misleading image of law for those who were listening. Obviously, judges make as well as apply the law; everything the Supreme Court does makes the law.

Ultimately, the hearings let Senators have some time to appeal to their political base. It let the American people, or at least those who paid attention to the hearings, see the person who will be on the Court for the next few decades. Perhaps that is enough or perhaps it is time to again think about how to make the confirmation hearings more meaningful.

Full post as published by Law Blog - WSJ.com on July 16, 2009 (boomark / email).