29 June 2010

Confirmation Charade

Commentary from the LA Times: Why the Kagan hearings will be a charade
Since the Robert Bork hearings punished him for his candor, the point is not to give the most honest answer, but the answer that makes it the most difficult for senators to vote against you.

Consider Monday's thunderclap from the judicial Mt. Olympus: The 2nd Amendment right to own a gun extends to state and local government. Personally, I think Justice Clarence Thomas' separate opinion in favor of the 14th Amendment's "privileges and immunities" clause over the due process clause was the better argument. But that's a debate for another day.

The more newsworthy opinion came from rookie Justice Sonia Sotomayor. She concurred with Justice Stephen G. Breyer's dissent, which held that there is no fundamental right to bear arms in the U.S. Constitution. "I can find nothing in the 2nd Amendment's text, history or underlying rationale that could warrant characterizing it as 'fundamental' insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes," Breyer wrote for the minority.

But when Sotomayor was before the Senate Judiciary Committee one year ago for her own confirmation hearings, she gave a very different impression of how she saw the issue. Senate Judiciary Chairman Patrick J. Leahy asked her, "Is it safe to say that you accept the Supreme Court's decision as establishing that the 2nd Amendment right is an individual right? Is that correct?"

"Yes, sir," she replied.

Now, both Sotomayor and Leahy festooned their colloquies with plenty of lawyerly escape hatches. That's why Leahy asked the questions the way he did and that's why she answered them the way that she did. It's also why he spun her answers into more than they were: "I do not see how any fair observer could regard [Sotomayor's] testimony as hostile to the 2nd Amendment personal right to bear arms, a right she has embraced and recognizes." He deliberately made it sound as though she was open to an expansive reading of the 2nd Amendment when everyone knew she wasn't (as a judge, she was hardly a hero of the NRA).

Now, let me be clear. Sotomayor was nothing like an exception to the rule; she was following it.

Although the Bork inquisition was a largely partisan affair, the consequences have yielded a bipartisan sham. Republican and Democratic nominees alike are trained to say as little as possible and to stay a razor's width on the side of truthfulness. The point is not to give the best, most thoughtful or most honest answer, but the answer that makes it the most difficult for senators to vote against you. It's as if we expect nominees to demonstrate, one last time, everything we hate and distrust about lawyers before they don their priestly robes.

In fairness to everyone concerned, nobody is shocked to discover that Sotomayor is in fact precisely the dyed-in-the-wool liberal justice everyone expected her to be. But the fact that everyone is in on the lie is just further evidence of the sham Supreme Court hearings have become. They are a nonviolent and fairly bloodless cousin to totalitarian show trials, where everyone follows a script and politicians pretend to be "gravely concerned" and "shocked" upon "discovering" things they already knew.
More here from Reason.com: Confirmation Theater
Elena Kagan is set to participate in a confirmation process she once dismissed as a charade
Kagan now plans to decline comment on any issue that might bear in any way on any case that might come before the Court. She'll do her absolute best to prevent any serious substantive inquiry into her beliefs, and she'll make it clear that it's neither legitimate or desirable for the Senate to insist on exploring her set of constitutional views and commitments. If we aren't permitted to look at her record in public office as an indication of how Kagan might balance government power with individual rights, we're left to judge her on this: Kagan recognizes that the confirmation process is a charade designed to keep information away from the public, and to prevent the public from forming an informed opinion about who will sit on the Supreme Court.

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