Tuesday, July 21, 2009

Stuart Taylor Jr.: Commentary

Big Issues That Got Short Shrift

The media consensus about the recently completed hearings on Judge Sonia Sotomayor's nomination seems to be that it was a waste of everybody's time, with Republican senators asking "gotcha" questions and the nominee sticking to cautious bromides of the I-just-apply-the-law variety.

"While her confirmation hearings drew plenty of coverage last week," wrote Howard Kurtz in the Washington Post, "the level of media excitement hardly matched that surrounding Mark Sanford's Argentine affair, Sarah Palin's Alaskan exit or Michael Jackson's untimely departure."

True enough. But it's also true that most of the media missed a major opportunity to use the hearings as a peg for background pieces and news analyses explaining to readers and listeners some of the big issues on which so little light was shed by the senators and the nominee.

The media know how to do that sort of thing in other contexts. Consider the way in which the New York Times and others have used the 40th anniversary of the first moon landing for fascinating explorations of the past, present and future of space travel, including everything from the lunar lander's technology to the astronauts' subsequent lives.

But how much insight did the media offer on the complex but important issues that came up during the Sotomayor hearing? Issues such as these:

• Are judicial confirmation hearings so empty because of Judge Robert Bork's defeat in 1987, as some suggest? Is it really true that when Bork was rebuffed after candidly discussing his conservative, "originalist" judicial philosophy, his fate proved that candor would be fatal for any nominee, thus dooming all future hearings to vacuity?

• What are the basic contours of, and objections to, the bumper-sticker versions of the conservative (judges-should-never-make-law) as well as the liberal (judges-must-make-law-and-should-reform-it) approaches to constitutional interpretation?

• Are today's Supreme Court conservatives themselves "judicial activists," as suggested at the hearings by Democratic senators and elsewhere by leading conservatives such as federal appeals court judges J. Harvie Wilkinson and Richard Posner and National Review writer Ramesh Ponnuru?

• Do Judge Sotomayor's assertions that she is a successful product of affirmative action argue in favor of her own longtime advocacy of using numerically based racial preferences in allocating employment opportunities and college admissions? Or does her stunning success in college and since argue for refocusing affirmative action on opening opportunities for less-than-affluent people of all ethnicities who have shown themselves to be exceptionally capable of overcoming humble origins?

• Why did the Supreme Court majority -- unlike Judge Sotomayor -- perceive in the New Haven, Conn., firefighter case a tension between numerically based "disparate impact" lawsuits by minorities against employers and the principle of nondiscrimination at the heart of the original 1964 Civil Rights Act as well as (conservatives claim) the Constitution's equal protection clause?

• How plausible is Judge Sotomayor's explanation that her three-judge panel's cursory rejection of the lawsuit by the 18 white (including one Hispanic) firefighters against New Haven was required by her own appeals court's judicial precedents and thus not predictive of how she might rule as a justice?

• What is the significance of Republican criticisms of Sotomayor's approach to the raging liberal-conservative debate in recent years about whether judges should sometimes take account of foreign and international law in interpreting the U.S. Constitution?

I will seek to shed light on these issues in future posts, with links to relevant documents and more in-depth discussions by experts of various ideological persuasions.