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The Sotomayor confirmation hearings Dust-Up, Day Two [UPDATED]

July 14, 2009 |  7:34 pm

Sotomayor day 2 270 The Opinion Manufacturing Division invited a half dozen or so esteemed legal minds to comment on the Senate Judiciary Committee's hearings this week on the nomination of Judge Sonia Sotomayor for the Supreme Court. Here are the submissions for Day Two of the hearings, in chronological order. To read Day One's remarks, go here.

Tuesday, July 14

7:02 p.m.
Erwin Chemerinsky
Dean, UC Irvine School of Law

In response to hours of intense questioning, Judge Sonia Sotomayor said all of the right things to ensure that her confirmation will not have any unexpected problems. On Monday, Senator Lindsay Graham said that she would be confirmed unless she had a "meltdown." On Tuesday, there was no meltdown. Quite the contrary, she showed herself be to be extremely intelligent, exceptionally knowledgeable, and unfailingly poised.

She repeated the slogan that "judges apply, not make the law." Although I understand why this is said, I find it frustrating that nominees find it necessary to say something so clearly incorrect and that gives the public such a misleading picture of what the Supreme Court does. Every first-year law student knows that judges make law. In a common law system, like the United States, most of tort, contract, and property law is judge-made law. Everything the Supreme Court does makes law. To pick an example from a recent Supreme Court case, the Court would have made law whether it allowed or prohibited strip searching of a student suspected of having prescription strength ibuprofen. Whether the Court found a constitutional right to abortion in Roe v. Wade, or rejected such a right, it would have made law.

Saying that "judges apply, not make the law" is not only inaccurate, but harmful....

It creates the false image that the law is a mechanical process with little discretion for judges. That is not true, especially for Supreme Court justices. Justices have tremendous discretion in interpreting the broad provisions of the Constitution and in engaging in the balancing that constitutional law inevitably requires. That, of course, does not mean that courts and legislatures are the same; they obviously differ in countless ways. But both inescapably make the law.

Much like John Roberts telling the Senate Judiciary Committee that justices are just umpires, saying that judges apply not make the law creates a false impression of courts and the legal system. It diminishes the tremendous importance of the individuals who sit on courts and their ideologies and life experiences.

But this is a confirmation hearing and there was no benefit for Judge Sotomayor saying anything other than what the Senators needed to hear. Like every recent nominee, she dealt with controversial issues by saying as little as possible about her views. As to abortion, she said that Roe v. Wade is settled law, but gave no sense of her position. It worked for John Roberts and Samuel Alito and it will work for her. Yet, one is left wondering of the point of the hearings, other than giving Senators a chance to appeal to their political constituencies.

Erwin Chemerinsky, a constitutional law scholar, is founding dean of the School of Law at the University of California, Irvine. His latest book is "Empowering Government: Federalism for the 21st Century."

7:35 p.m.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law, Yeshiva University's Benjamin N. Cardozo School of Law

Erwin hits the nail on the head with his latest post.  It is downright embarrassing that a judge as smart as Judge Sotomayor (or Judge Alito) or a practitioner as experienced as John Roberts must say that the Supreme Court does not make law. This current, mandatory discourse trivializes the role of the judge and justice. (Frustration with this trend appears to have been part of what motivated Justice Sandra Day O'Connor to become a champion of judicial independence once she stepped down.)

It is always worthwhile to remember that the branches constantly operate to obtain more power vis-a-vis the other branches.  This tactic of forcing judicial nominees to declare publicly that they will not exercise judgment but rather will only follow instructions (whether in statute or Constitution) is a clever means by which Senators reduce and restrict the power of the judicial branch.  It also reinforces the old saw that the legislative branch is the most dangerous branch and the judicial the least.

Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law."

7:46 p.m.
Vikram D. Amar
Associate Dean for Academic Affairs and Professor of Law, UC Davis

It's hard to take modern "hearings" like this seriously.  Intelligent, talented lawyers like Charles Schumer are reduced to tossing a softball -- no, beachball -- question like this one: "Just so I'm clear, Judge, have you ever in fact decided a case based solely on your personal preferences or sympathies?" And sophisticated conservative opponents of Judge Sotomayor, for their part, end up having to ask, in effect:  "Yes, or no, Judge, are you still an activist?"

At least Joe Biden provided some comic relief last time around.

I don't feel nearly as badly as I did last week that so many more Americans followed Michael Jackson's funeral than were expected to pay attention to the Senate Judiciary Committee this week.  Ah, well, there's always tomorrow.

Vikram D. Amar is Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis

8:31 p.m.
Susan Estrich

Robert Kingsley Professor of Law and Political Science, University of Southern California Law School

Really, what can you expect in a process where saying out loud what we all know -- yes, Virginia, justices do make law sometimes, because no one actually knows (or necessarily cares) what the founders would have thought about Executive power to order wire intercepts or detain people without charges at Gitmo  -- would doom you.  So everyone looks just plain phony, although God knows, what's surprising about Sonia Sotomayor is how few unconfirmable things she's said, not how many.

So what can I say. The Jackson memorial had a few genuine moments. We'll see about these hearings.  Still beats talking about how unemployment is going to go up.

Susan Estrich, national campaign manager for Democratic presidential nominee Michael Dukakis in 1987-88, is the Robert Kingsley Professor of Law and Political Science at USC and a partner in the Los Angeles office of Quinn Emanuel Urquhart Oliver & Hedges, LLP. She is a legal and political analyst for Fox News and a syndicated columnist.

8:56 p.m.
Ilya Somin
Assistant Professor of Law, George Mason University School of Law

I agree that the intellectual content of the hearings wasn't particularly impressive, and that Sotomayor didn't say anything likely to prevent her confirmation in an overwhelmingly Democratic-controlled Senate.  I am not convinced, however, that this proves that the hearings are mostly a waste of time.

In addition to questioning the nominee, confirmation hearings also serve the valuable purpose of identifying key constitutional law issues that are so widely considered to be important that any nominee to the court must to take account of them. They thereby help define the judicial "mainstream" to which Dean Chemerinsky referred.

In that regard, I was pleased to see that Sotomayor was questioned about property rights issues more extensively than any previous nominee of the last several decades. Not only by Republicans, but also by liberal Democratic Senator Herb Kohl, who expressed his strong opposition to the Supreme Court's 2005 decision in Kelo v. City of New London (which allowed the condemnation of private property for transfer to other private individuals to promote "economic development").

In my academic work, I have emphasized that property rights are unlikely to advance beyond the "poor relation" status to which the Supreme Court has generally relegated them unless liberal as well as conservative jurists begin to accept the idea that they deserve meaningful protection. The questioning of Sotomayor on these issues, especially Kohl's statement, is a modest step in the right direction. Combined with the widespread previous denunciation of Kelo by many liberal politicians and groups such as the NAACP, we have reason to hope that property rights are becoming respectable again. In time, they may yet shed their second class status. Senator Kohl, the NAACP, and many other liberals now realize that unconstrained use of takings threatens minorities, the poor, and the politically weak, and that constitutional property rights are not just a tool of the rich.

Ilya Somin, a constitutional law scholar, is an Assistant Professor at George Mason University School of Law and co-editor of the Supreme Court Economic Review.

9:39 p.m.
Ilya Somin

One of the most interesting moments of the second day of hearings was Sotomayor's repudiation of the idea that empathy is a legitimate basis for judicial decision making. She emphasized that "[w]e [judges] apply law to facts. We don't apply feelings to facts," and even went so far as to explicitly reject President Obama's view that judges must  decide close cases based on what is in their "hearts," saying that "I wouldn't approach the issue of judging in the way the president does." It's not every day that a nominee publicly rejects a central tenet of the judicial philosophy of the president who nominated her.

It's possible, of course, that Sotomayor was just saying what  "the senators needed to hear," as Erwin Chemerinsky suggests (I assume he meant "wanted to hear"). Even if that is true, it shows that the administration's campaign to legitimize empathy as a basis for judicial decision-making hasn't made much headway. With a 60 vote Democratic majority in the Senate, Sotomayor could surely have made some of the pro-empathy arguments Dean Chemerinsky advanced in our earlier LA Times debate on the subject without endangering her chances. The fact that she chose not to do so is telling.

--

Here's the back-and-forth on Monday's Sotomayor hearings.

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