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The Sotomayor Hearings, Day One

Monday, July 13, 2009 1:52 PM

The Post asked for legal experts' quick takes on the first day of Sonia Sotomayor's confirmation hearings before the Senate Judiciary Committee. Below are contributions from Laurence Tribe, Gerald Torres and Erwin Chemerinsky.

LAURENCE TRIBE

Professor at Harvard Law School specializing in constitutional law

Every Supreme Court nominee in recent times has come before the Senate Judiciary Committee ably coached on how to sound knowledgeable and thoughtful while revealing as little as possible that might lose crucial Senate votes. There has been no surprise in the opening statements and will be none in the rounds of questioning about Sonia Sotomayor's prior statements or about her rulings in controversial cases involving gun rights or affirmative action, all of which are still pending in the federal courts and thus arguably beyond appropriate comment on her part.

None of us, meanwhile, has a crystal ball about the issues likely to confront the country, and thus the court. It could well be, in an era of dizzying technological and cultural change, that today's fault lines between "conservatives" and "liberals" will predict as little about tomorrow's lines of division as was true of FDR's appointees, all of whom seemed aligned on issues of congressional authority over the economy that split the nation in the 1930s but who ended up at opposite ends of the spectrum on the civil liberties issues that defined the debates of the 1950s and 1960s. So, too, we must doubt the predictive value of notions like "originalism," concepts like "judicial activism," and, indeed, the entire hodgepodge of labels and slogans invariably trotted out during these summer rituals.

Especially in a case like that of Sotomayor, whose extraordinary personal and professional biography and long record of mainstream judicial rulings have combined to make her overwhelming confirmation a virtual certainty, we are entitled to wonder what the point of this entire exercise might be.

The odds that any Senator's vote will be changed by what happens this week are vanishingly thin. So the hearings are less likely to help the Senate discharge its mission of providing "advice and consent" than to sharpen the public's understanding of the constitution's meaning and of the Supreme Court's role in construing and enforcing the nation's laws. The hearings that led to the Senate's rejection of Robert Bork and its confirmation of Anthony Kennedy over two decades ago taught the public valuable lessons about the constitution's protections for personal privacy and other rights implicit in, but not expressed by, the document's text. But most of those who listen this week will not have heard those hearings, which were held over two decades ago. Unless the absence of suspense about the outcome turns these newcomers off altogether, these hearings may serve as a much-needed introductory seminar in constitutional law. But even if the hearings merely enable the nation to focus more closely on who is actually raising meaningful questions and who is merely posturing, the process will have been worthwhile.

GERALD TORRES

Professor at the University of Texas School of Law; counsel to Attorney General Janet Reno; knew Sotomayor when she was a law student

There were no surprises in Monday's opening session. It was a lot like watching batting practice and then walking over to the bullpen and watching the pitchers. The hitters all looked like champs, and the pitchers were warming up so they wouldn't hurt their arms when they threw their screw balls or curves.

Watching the pitchers was most interesting. The opening statements suggest that the takings clause, the application of the second amendment to the states, the impact of international law on domestic proceedings, and the separation of powers will dominate the questions. The cat's paw of "empathy" was advanced but parried by Sotomayor in a way that makes it unlikely to be an effective weapon against her. It will be tried, as the opening statements implied, through suggestions that an empathetic judge will be an activist who rules by emotion rather than intellect. Yet, her record as a careful jurist stands on its own. The incorporation of the second amendment opens an emotional avenue of attack, but one that conservative jurisprudents may not want to go down. Similarly, the limitations on the power of eminent domain will remain a question that will neither be asked nor answered directly. I suspect we will see similar treatment with issues of separation of powers and the impact of foreign law.

ERWIN CHEMERINSKY

Founding dean of the University of California at Irvine School of Law

Listening to the senators' opening statements at Sonia Sotomayor's confirmation hearings leaves no doubt that she will be overwhelmingly approved by the Senate Judiciary Committee and likely by the full Senate. Republican Sen. Lindsay Graham (S.C.) essentially said just this in pointing out that judicial nominations are a product of presidential elections.

So the Sotomayor hearings are primarily political theater. And never are they more theatrical than when Republicans begin repeating their mantra that it is not for judges to make policy or law, a slogan that has no resemblance to the reality of liberal or conservatives judges, and especially not that of Supreme Court justices. Everything the Supreme Court decides is the law. The constitution was written in broad language, such as "due process of law" and "equal protection" that requires policy choices. Many constitutional provisions require that justices decide what is "reasonable," such as in evaluating the constitutionality of arrests. Because constitutional rights are rarely absolute, courts must decide whether there is a "compelling" government interest. All of this involves policy choices. That is why President Bush picked staunch conservatives.

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