Thursday, August 06, 2009

Supreme Court Nomination Hearings--Kabuki Theater at Its Worst

Christopher L. Eigsgruber makes the point that confirmation hearings for Supreme Court nominees are generally pointless. Which is of course true and with Sonia Sotomayor's hearings even more so.

But Eigsgruber makes a point that I think needs to be better understood:
Worse yet, both the senators and the nominee indulged the fiction that Supreme Court justices can resolve cases simply by applying the law, and without invoking controversial values or judgments. That's baloney, and every lawyer knows it. The Supreme Court takes only cases about which reasonable lawyers can disagree. If justices could resolve those cases without recourse to values, none of us would care so much who sat on the Court.

The only reasonable question to ask about a Supreme Court nominee is how her values and experiences will affect her jurisprudence. The Sotomayor hearings—like many previous ones—featured a conversation about whether the nominee would allow her values and experience to influence her interpretation of the law. That starting point guaranteed that the hearings would produce no useful information about Judge Sotomayor's judicial philosophy. Call it a kabuki dance or a subtle minuet or just a mess—however you describe it, it's not very edifying.
Eigsgruber views confirmation hearings as Kabuki in the worse fashion. It is useful to remember that confirmation hearings are a relatively new, i.e. television age, phenomenon and serve mostly as a soap box for the Senators rather than the generally reclusive judges.

But another point is buried in there as well. Aside from a very small number of cases, most Supreme Court cases have to resolve either 1) splits in the Circuit Appeals Courts on matters of application of a certain law which the Circuits have legitimately arrived at conflicting interpreation or 2) large scale cases inovlving statutory and/or constitutional interpretation. Thus, justices cannot simply apply the law to the cases. The Supreme Court, as Chief Justice John Marshall said in Marbury v. Madison say what the law is. You cannot expect Justices to not be informed by their own views and experiences. It is ludicrous to think that they won't apply their experience and/or outlook on the deciding of cases, they are human they are called upon to make the absolute toughest judicial calls--other wise no case would get to them on appeal.

Eigsgruber is right though, the question should not be whether a justice will be influenced by their but how. The problem with the "how" question is that it is fraught with judgments that will come through. Despite the fears, on both sides of the aisle, about the view points of various nominees, the fact is that most Justice really do a good job and try their best to be as fair as possible.

The problem that the Supreme Court has is not judges who have opinions and viewpoints, but that there is less and less practical experience on the Court. Almost all of the Justices currently sitting or on the various recent short lists have no political experience themselves, having never held or having held only lower level elective offices. That all of them are smart is without question, but they lack varied experience and that is hurting the Court more than anything else, including the Justices personal viewpoints.

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