Monday, July 20, 2009
The lost opportunity of Justice Sotomayor
In spite of whatever parliamentary maneuvers that Senator Jeff Sessions, the weaselly Alabama redneck, puts up to stall the inevitable, Judge Sonia Sotomayor will soon be confirmed to the Supreme Court of the United States. "Justice Sotomayor." Although it will grate, neo-confederates are going to have to get used to it.
For my part, I suppose I'm in favor of Judge Sotomayor's confirmation. One suspects that her positions will be at least as progressive as those of Justice Souter, whom she is replacing. So even though she's a "backfill" nomination (no disrespect intended) her seat on the Court will halt the rightward tilt that is one of the many toxic burdens imposed on the nation by the Junior Bush administration.
But I think progressives, generally, missed a golden opportunity during the Senate confirmation hearings.
The hearings were a joke. There was no discussion of substantive legal issues; there was no debate for or against the "unitary executive" theory of the division of powers in the Federal government. Just as with every other Supreme Court Justice nomination since 1987, when Democrats torpedoed Judge Robert Bork, this one avoided controversial issues (abortion being the most prominent) in order to smooth the road to confirmation.
Ever since the Senate rejected Bork's nomination, all Supreme Court nominees, up to and including Judge Sotomayor, have been coached by their respective "murder boards" to avoid controversy, to come across as bland and maleable. In short, they are instructed in the time-honored political art of creating long, elaborate non-answers.
In fairness, Republicans provided little opportunity to delve into weighty legal matters, focusing as they did, on Sotomayor's "wise Latina" comment, made some 12 years ago, and taken completely out of contex. But I'm not blaming them. They already knew that real questions would not get real answers.
The rub for me is that Judge Sotomayor had an opportunity and she squandered it.
Consider: with Al Franken now giving Democrats that magic sixtieth seat in the Senate, the Republicans could not employ the filibuster to block Judge Sotomayor's nomination no matter what she said.
During the hearings, she could have held forth on any number of legal philosophical issues, from the right to privacy to the limits of executive authority. A real debate, a real national discussion might have ensued. For progressives, this held the attraction of allowing us to have our beliefs defined by a brilliant legal mind, rather than leaving it to right-wing blowhards like Sean Hannity or Bill O'Reilly. Judge Sotomayor could have become a champion for progressive legal ideals, could have presented them to the nation.
It would have raised controversy, and undoubtedly would have led to more opposition from Republicans. But, in the end, they could not have stopped her nomination. And progressive legal philosophy, which I believe is sound enough to withstand examination, would have been brought into the public forum.
So, as much as I hate to say it, Judge Sotomayor is off to a poor start. Let us hope that, when she takes her seat on the high court, she will become a vocal advocate for progressive values.