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A Times Editorial

Sotomayor played the game deftly

Over four days of Senate confirmation hearings, U.S. Supreme Court nominee Judge Sonia Sotomayor carefully navigated the political shoals. She talked about constitutional law without offering her own opinions. This is the winning strategy to which all Supreme Court nominees hew. It exhibits their command of case law and precedent without offering congressional questioners openings to object to their views. It smooths the path to confirmation, but it defeats the purpose of confirmation hearings, which is to explore how a nominee would reshape the high court and American jurisprudence.

Sotomayor is eminently qualified to be on the Supreme Court. She would have more years as a judge than any justice confirmed in the past 70 years. The American Bar Association has given her its highest endorsement. Her only potential Achilles' heel is a few intemperate remarks in speeches that suggested her ethnicity might influence her decisionmaking. Republicans on the Senate Judiciary Committee pressed her on a 2001 speech in which she said a "wise Latina woman" might come to a better judgment than a white male who didn't have the same experiences. Sotomayor essentially retracted it, saying that while personal experience is part of what makes up a judge, it is a judge's duty to recognize her biases and avoid being influenced by them.

That leads to this question: Does Sotomayor let her ethnicity or experiences drive her decisions? Analysis of thousands of her cases indicates that Sotomayor, first as a federal trial judge and then a federal appellate judge, follows precedent even when the law leads to a result that might differ from her own preferences. It appears she is as she claims: a careful jurist who neutrally applies the law.

That said, the Supreme Court is often called upon to decide unique constitutional questions or depart from precedent that no longer reflects the prevailing understanding of justice. These hearings left Americans essentially no closer to knowing how Sotomayor may approach the great legal issues of the day. Despite attempts to get her to discuss such issues as the breadth of executive power, the power of Congress to regulate the states, abortion and gun rights, Sotomayor would not engage.

The confirmation hearing process is little more than political theater in which the nominee dodges politically divisive questions. Judicial nominees have to be careful not to be seen as prejudging cases that might come before them. But there is no ethical bar to a nominee raising concerns about the legal reasoning of past Supreme Court rulings or offering a broad philosophy of interpreting the Constitution.

Sotomayor would succeed liberal justice David Souter, and the ideological balance of the court would not likely change. That will make it easier for her to attract some Republican support. But if confirmed as expected, Sotomayor will have won a lifetime appointment and avoided a full vetting of her legal philosophy by the Senate. That is smart politics, but that's not the way it should work.

Sotomayor played the game deftly 07/16/09 [Last modified: Thursday, July 16, 2009 6:28pm]
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