Opinion: The Sotomayor confirmation hearings Dust-Up, Day Four

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This week five esteemed legal minds have been commenting for Opinion L.A. on the Senate Judiciary Committee’s confirmation hearings for Judge Sonia Sotomayor. Here are the submissions for Day Four of the hearings, in chronological order. To read the two previous installments in this series, go here and here.

Thursday, July 14

12:14 p.m.
Vikram D. Amar
Associate Dean for Academic Affairs and Professor of Law, UC Davis

Less than useless. If Judge Sotomayor didn’t discuss any areas of law with President Obama and his folks (as she maintained), and won’t meaningfully discuss any legal topics in front of the Senate (on the bogus ground that any such discussion would either be too abstract to be useful or too concrete to allow her to then be open-minded in the future), then what’s the point of hearings?

It insults the intelligence of lawyers and non-lawyer alike for the Republicans to insist that federal judges ought not to make policy, and for the Democrats to insist that Judge Sotomayor hasn’t made and won’t make policy. What we all should be talking about are the ways in which legitimate judge-made policy differs from the kinds of policy decisions elected legislators and Presidents fashion. Federal judicial policymaking, when done right, is interstitial (accomplished with the boundaries of statutory and constitutional parameters); incremental (attendant to the size and speed of trends and currents in American law, history, economics and sociology); thoroughly transparent and explained in a published format that responds fully to arguments on the other side, and not particularly concerned with the next electoral cycle (even as it is properly aware of longer term American attitudes). Ironically, by misleadingly suggesting that judges do not and ought not to make policy, and saying that because of concerns about the immediate perceptions of voters in the next election, Judge Sotomayor and her supporters undermine, rather than support, the idea that judges can be and are different than other politicians. I had hoped for more from my own Democratic party.

Don’t get me wrong. I fully support Judge Sotomayor’s nomination and expect her to be an able justice. I simply think these hearings are, at best, a waste of time.

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

1:33 p.m.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law, Yeshiva University’s Benjamin N. Cardozo School of Law

As I suggested in my first post, Republicans could do much worse than confirming Judge Sotomayor, and statements by various Republican Senators today confirm that fact. These hearings are a litmus test of what is happening (and what should happen) to the Republican Party. The interests that have secured power for Republicans in the past have been those involving the encouragement of capitalism, or business, and law and order. She has a solid record and impressive experience in both fields from a traditional Republican perspective, and the willingness of some Republican Senators to vote for her signals a new era in which Republicans are re-awakening to the basics.

Republicans lost their way when some among them tried to re-brand the party as one of narrow social interests that do not have the support of a majority of the American public (e.g., hard-line stances against abortion and gay marriage). Were they still capable of controlling the Party, the hearings would have been far more contentious and unpleasant. Sotomayor simply is not a bitter pill for traditional, foundational Republican interests.

With the push by the Obama Administration for expensive health care reform in the context of a weak economy and many lost jobs, Republicans have a golden moment of opportunity to escape the maze in which they lost themselves and to get back to their strengths. The tenor of these hearings and the statements today indicate they may well get there.

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.’

Photo: AP Photo / Charles Dharapak