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July, 13th 2009

Sotomayor confirmation hearing underway

– Liz Mair

Judge Sotomayor's confirmation hearing is underway and I'm watching it live right now.  What am I hoping for?  Well, unlike many of my friends on the right and the left, at present, I don't have a firm view of how I personally would vote on this nomination were I in the US Senate-- which I suppose is rather the point.  At this stage, I'm really angling for a comprehensive and exhaustive hearing because ultimately, the things I've heard most about Judge Sotomayor are that a) she has a compelling life story b) her nomination is historic c) she made comments about a "wise Latina woman" that some find very objectionable and d) she took a decision in the Ricci case that looks odd, to say the least, to many people.  There is more that I know, too, but ultimately, none of it is sufficient information with which to decide whether this is a nomination I personally would get behind or one I would not.  I would like to know more about Judge Sotomayor's reasoning, judicial temperament, and philosophy-- much more-- because ultimately, the Senate is going to say yea or nay to her ascending to the highest court in the land, and one that (contrary to what a lot of people on the left and the right actually think) is continually faced with the prospect of hearing cases and reaching decisions involving the least clear and most contentious areas of law.  Everyone should be clear, before that happens, on what Judge Sotomayor actually brings to the table apart from a noteworthy biography and views that some have described as racist (rightly or wrongly).

 

In my mind, that is particularly the case given then-candidate Obama's pronouncements about "empathy" being an important quality in a judge prior to becoming President, and given that he is the President who nominated her.  Yes, on some level, we all want our judges (and our politicians and our doctors and our TV news presenters and our dogcatchers and our mechanics) to be empathetic.  But bringing "empathy" into the court room does, in my view, have risks-- when empathy (as opposed to simply the letter of the law) is a factor, outcomes can become less predictable, and more open to reversal and change based upon differentials between one person's version of empathy and that of another.  People are people, and the prospect of different judges reaching different conclusions on that basis alone is already high-- hence the premium on literal interpretation, which is more standard.  Ultimately, everyone can get out their dictionary and determine the exact meaning of specific words, which ensures greater consistency and predictability as to judicial outcomes, and hence more confidence in what our system of law provides for, and what it does not.  That is exceedingly important, especially when looked at through the prism of individuals needing to know what their rights are and when they have been violated-- the kind of thing the Supreme Court trades in.  The last thing I want is for a question mark to exist as to what I can, and cannot do, with constitutional protection because considerations of "empathy" could result in different outcomes, depending on who my prospective legal adversary is.  Literal interpretation matters because without clarity as to what the law provides, no one knows what they can, and cannot do.  When pushed to a genuine extreme (admittedly very unlikely in the US), that leads to one of two things: Overly cautious behavior where no one wants to do anything much for fear of falling afoul of the law (seriously, consider the difficulties of economic development in locations where property rights are rather arbitrarily enforced, or not, based on the whims of the local magistrate, chief, or similar-- not necessarily "empathy," but still evidence of a subjective element in decision-making) or something approaching quasi-anarchy.  People need rules, and they need certainty as to rules.  "Empathy"-based decisions, even if a small proportion of them, seem hard to reconcile as consistent with legal clarity and certainty-- though that is just my opinion.

Judge Sotomayor may or may not share it at all or exactly, and ultimately, whether she does or not does not entirely dictate whether she should sit on the Supreme Court. 

The Senate may not share it (indeed, I suspect there are a lot of people in the body that don't think about confirmation hearings this way, but just look at them as straight-up political fights, which they of course also are, or who don't really care how a judge approaches legal decision making, so long as they share that individual's opinion on issue X or issue Y). 

I just hope the Senate will at least do some thorough questioning, and that the public will get to know more than what we presently do about Judge Sotomayor.  The information that is being most publicly branded about just doesn't really tell us much of anything that feels deeply relevant here.  And I'm sure there's a lot that is noteworthy about Judge Sotomayor beyond her compelling life story. [intro]

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