Sonia Sotomayor's purposely bland testimony, her determination to sound robotic and say virtually nothing, is almost enough to make me pine for those distant days when a Senate confirmation hearing could be spiced with talk about pubic hair and Long Dong Silver.
Sotomayor has hewed to the reticent stategy that was best articulated by Ruth Bader Ginsburg during her 1993 confirmation hearing. Ginsburg warned her Senate inquisitors at the outset that she would offer "no hints, no forecasts, no previews" on how she might rule on anything that came before the high court, and she largely stuck to that rule. All nominees since Ginsburg have done virtually the same, if only to avoid making themselves a fat target for the ideological interest groups that are perpetually locked and loaded.
And Sotomayor, of course, has extra incentive to play it safe. She's facing seven Republican white men who are looking for something, anything, to help them paint her as a reverse-racist Puerto Rican woman enslaved by her emotions. (Bill Maher has mimicked the Republican strategy thusly: "For too long, Puerto Rican women have had their boot on the neck of white men in America, and this has to stop!") So it's probably no surprise that Sotomayor has endeavored to lull the opposition to sleep with responses that can best be described as variations on vanilla.
For starters, of course, she has played down her past statements about how life experience is an important ingredient in any wise judge's thinking. (This would be the same life experience that helped compel President Obama to nominate her in the first place.) But here she is at cruising speed:
When asked yesterday by Republican Sen. Chuck Grassley to address the general issue of whether governments had the right to take private property for public purpose, she replied: "Opining on a hypothetical is very, very difficult for a judge to do...I can't engage in a question that involves hypotheses."
When asked by Republican Sen. Orrin Hatch to address a specific issue of gun rights, she replied: "There are three cases addressing this issue, at least, I should say, three cases addressing this issue in the circuit courts, and so it's not a question that I can address...I bring an open mind to every case."
When asked by Democratic Sen. Herbert Kohl to name a current Supreme Court justice whom she admires, she replied: "Senator, to suggest that I admire one of the sitting Supreme Court justices would suggest that I think of myself as a clone of one of the justices. I don’t...Going further than that would put me in the position of suggesting that, by picking one justice, I was disagreeing or criticizing another. And I don’t wish to do that."
Shortly thereafter, she said to Kohl: "I’m a judge who believes that the facts drive the law." At another point, she told Republican Sen. John Kyl, "We apply law to facts. We don't apply feelings to facts." At another point in the proceedings, she said: "The task before me as a judge is not to accept or not accept new theories; it's to decide whether the law, as it exists, has principles that apply to new situations."
This is the Ginsburg strategy, as further refined by John Roberts, who famously (and fatuously) insisted during his own confirmation hearing that judges are no different from baseball umpires who objectively call balls and strikes. Sotomayor well recognizes - but prefers not to say out loud - that judges frequently disagree on what constitutes "the facts," because the assemblage of "the facts" hinges in part on what legal perspectives and life experiences the judges bring to bear. And baseball fans know quite well - as does Roberts, presumably - that there is no robotically objective way to call balls and strikes; some umps have an expansive strike zone, while others squeeze the pitcher.
Judges are similarly heterogeneous, but high court nominees and their presidential sponsors have come to recognize that the prospects for a smooth confirmation are enhanced by behaving during testimony as if the heart and brain function the same way as a MacBook.
For that reason alone, Sotomayor will continue to say virtually squat about the hot stuff that will likely come her way in the years ahead, everything from gay rights and campaign finance and abortion and environmental law to anti-trust law and executive war powers and the death penalty and church-state relations. Republicans will undoubtedly wind up feeling just as frustrated as Joe Biden, who, as the ranking Judiciary Committee Democrat in 2005, complained to nominee Roberts, "You've told me nothing."
It's arguably unfortunate that high court confirmation hearings have become so substance-free - given the fact that, after all, the nominees are getting lifetime jobs, with the potential to influence national life far more than any president - but Washington is a place where candor is often converted into a weapon, for use against the person who dared speak openly.
There is currently a new TV ad, sponsored by the conservative Committee for Justice, which claims that Sotomayor "led a group supporting violent Puerto Rican terrorists." The ad also seeks to link her to '60s bomber Bill Ayres. I kid you not.
Why should Sotomayor risk saying anything, or exuding any ethnic flavor, that would give aid and comfort to those who are thirsting to take her down? Better to stick with vanilla.
There was one spicy episode yesterday, however:
Alabama Sen. Jeff Sessions, the GOP's designated point man, was in the midst of painting Sotomayor as a biased judge swayed by her gender and ethnicity when he sought to play his trump card. He told Sotomayor that she didn't measure up to the standard set by Miriam Cedarbaum, a federal judge who, in Sessions' words, "believes that judges must transcend their personal sympathies and prejudices." He then added, "So I would just say to you, I believe in Judge Cedarbaum’s formulation."
...To which Sotomayor replied: "My friend Judge Cedarbaum is here."
Yep, Cederbaum was in the room, as part of Sotomayor's rooting section. Turns out, Cederbaum has been mentoring Sotomayor since 1992.
Sotomayor continued: "We are good friends, and I believe that we both approach judging in the same way, which is looking at the facts of each individual case and applying the law to those facts." (Cederbaum later told The Wall Street Journal: "I don’t believe for a minute that there are any differences in our approach to judging, and her personal predilections have no effect on her approach to judging.")
But back to that priceless retort for a moment: When Sotomayor revealed that she happened to have Cederbaum close at hand, Jeff Sessions looked - ever so fleetingly - as if someone had swiped his pants. As a metaphor for the GOP's frustrations, this episode was almost too good.