July 17, 2009 in Opinion

Editorial: Lots to learn from process in Senate for Sotomayor

 

Sonia Sotomayor’s confirmation hearings have provided moments of tension and moments of levity. It’s been a refreshing demonstration of national political leaders’ ability to temper serious advocacy with respectful civility.

“I like you,” said Sen. Lindsey Graham, a South Carolina Republican on the Judiciary Committee, as he proceeded to grill the Supreme Court nominee with a prosecutor’s rigor.

While there’s little doubt that Sotomayor will win the Democrat-dominated Senate’s approval, there is a lot for the public to take away from the frank exchanges. Not just a keener understanding of legal theory, but better insight into the ideological distinctions that produce conflicting legal interpretations of the same set of facts.

Whenever the Senate goes through a judicial confirmation procedure it exposes the fiction that judges ought to be clones.

Judges are individuals, formed of what Sotomayor might call their rich life experiences. No two come to the bench with identical beliefs or preparation.

At the state and local levels, where judges are commonly elected by voters rather than appointed by the president for life, candidates fiercely resist any discussion of their personal beliefs. Yet as the Sotomayor hearings have shown, the law is not clear-cut and limited to one interpretation. If it were, the work could be done by computers.

If such precision were realistic, the vote by which the current Supreme Court overturned Sotomayor’s controversial reverse-discrimination decision in a case involving Connecticut firefighters would have been 9-0 instead of 5-4.

For that matter, it would have been 1-0; who needs nine justices?

If the law were clear-cut, there would be no swing votes on the Supreme Court, and heralded centrists like Sandra Day O’Connor and Anthony Kennedy would have much lower profiles in the history books. It would make no difference whether Ruth Bader Ginsburg or Clarence Thomas wrote an opinion.

Still, when voters in Washington, Idaho and other states pick their own judicial officers, they don’t get to put the candidates in front of a microphone and a battery of cameras and demand answers to probing questions about personal philosophy. Sotomayor declined to answer certain hypothetical questions that would have lured her into prejudging unsettled issues. But in many cases she revealed clear attitudes about such divisive issues as abortion, gun rights and affirmative action.

That kind of candor will surely help the senators decide how to vote on her confirmation, a process that state and local voters must envy.

Admittedly, the power of a Supreme Court justice to interpret the Constitution dwarfs that of a local trial judge ruling on procedural questions and drafting jury instructions. But the law profoundly impacts life at all levels, and the voters deserve to know what beliefs steer judicial decisions. At least, let us shed the notion that being impartial means having no set of personal values for guidance.

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