Little for Liberals in Confirmation Hearings
As Sotomayor and White House Avoid Ideology, Some on Left See Wasted Chance
Sunday, July 19, 2009
Early on the third day of last week's confirmation hearings, one of the Senate Judiciary Committee's leading liberals leaned forward in his leather chair toward Sonia Sotomayor to explain his hopes for the next member of the nation's highest court.
"I want a justice," said Sen. Benjamin L. Cardin (D-Md.), a veteran politician taking part in his first Supreme Court confirmation, "who will continue to move the court forward in protecting . . . important civil rights. I want a justice who will fight for people like Lawrence King who, at the age of 15, was shot in a school because he was openly gay. I want a justice who will fight for women like a 28-year-old Californian who was gang-raped by four people because she was a lesbian. And I want a justice who will fight for people like James Byrd, who was beaten and dragged by a truck for two miles because he was black."
So, Cardin asked the nominee: Don't courts have to take such factors as race into account?
Sotomayor paused. "Well," she replied, "it depends on the context of the case that you're looking at."
The hearings were a moment of history that liberals had awaited for 15 years: an opportunity for a Democratic president's Supreme Court nominee to inject into the public dialogue fresh ideas about the Constitution and the law, beginning to recalibrate a court that has gravitated to the right.
Yet Sotomayor did not articulate such a vision. In answering Cardin, and in scores of other times during four intense days in the witness chair, she eluded efforts of Democrats and Republicans alike to draw out any statement of liberal thought.
Sotomayor's inscrutability last week has raised fundamental questions: about the Obama administration's approach to future nominations, the direction of the court, the way Senate Democrats are using the benefits of their majority and the influence of the American left.
At the heart of those questions is another one, which has ignited a debate among legal scholars, advocates and members of Congress. Did the hearings reveal a true absence of liberal ideas in the 55-year-old judge President Obama chose to fill his first Supreme Court vacancy? Or did they reflect sheer political pragmatism by someone, coached by White House staff members and following the model of other recent nominees, seeking to maximize support by avoiding controversy?
Either way, Sotomayor's reticence, if not her nomination, has disappointed legal thinkers on the left. The hearings "did serious damage to the cause of progressive thought in constitutional law," said Geoffrey R. Stone, a University of Chicago Law School professor who was dean there when Obama joined its faculty. Doug Kendall, president of the Constitutional Accountability Center, a liberal think tank, called them "a totally missed opportunity. . . . The progressive legal project hit rock bottom [last] week."
Little mystery remains as to whether Sotomayor will join the Supreme Court. Several Republican senators have said they will vote with Democrats to endorse her when the chamber decides on her confirmation in early August.
Sotomayor has been on the federal bench for 17 years, first as a trial judge in Manhattan and, since 1998, as a member of the U.S. Court of Appeals for the 2nd Circuit. She has a record of rulings that even Senate Republicans said fits within the judicial mainstream.
At her hearings, she distanced herself from public remarks off the bench that, according to the GOP, suggest a gender and ethnic bias. She distanced herself, too, from Obama's view that a judge should have empathy -- an idea floating within liberal legal thought. And she concealed her views on issues important to the left, including abortion, gun control and same-sex marriage, as well as the civil rights matters Cardin raised.