Yesterday saw the opening of confirmation hearings for Judge Sonia Sotomayor, before the Senate Judiciary committee. Several conservative Republicans questioned her objectivity and pronounced their devotion to the rule of law and equality for all litigants. The mainstream position seemed to be that Sotomayor would be able to explain controversial remarks, which were made in the context of her own study of any jurist’s moral obligation to transcend personal experience and make unbiased judgments.
The Constitution took center stage in the opening day of hearings, which consisted of lengthy opening statements from each of the committee members, a presentation of Judge Sotomayor from each of New York’s two senators, and a statement from Judge Sotomayor herself. Throughout the proceedings, there was a tug of war between senators of differing ideologies who repeated their undying allegiance to the Constitution.
Sen. Al Franken had an auspicious and historic debut yesterday on the Senate Judiciary committee. The most junior member of the US Senate and the most recent admission to the committee, Franken opened his remarks with a pledge to emulate Paul Wellstone, who was known for reaching across the aisle to conservative colleagues. He also said he plans to learn from the accumulated wisdom of his fellow committee members and their long experience.
Franken also noted that he is the most recent member of the US Senate to have taken the oath of office, just 6 days before. He stated his taking that oath absolutely seriously and that he would use his role on the Judiciary committee to ensure that the American people have vigorous representation to defend the values and the rights enshrined in the Constitution.
“Last Tuesday, I swore to support and defend the Constitution of the United States”, Franken said, adding, “I take this oath very seriously”. He went on to explain that the rights of Americans are “facing challenges on two separate fronts”. Franken explained that electorally, Congress answers most directly to the people and said he is “wary of judicial relativism”.
He reminded Sotomayor that “except in the most extreme circumstances, the judiciary [is to show] deep deference” to the legislature. And he added to the growing chorus of Democrats who say that conservative judges have ushered in a new era of aggressive judicial activism. Sheldon Whitehouse (D-RI) said Republicans obsessing about “judicial modesty and restraint” is “starkly counter to recent history”.
Whitehouse said conservatives’ denouncing “judicial activism” has become little more than sloganeering and said such rhetoric is really about using “code words” for seeking a “particular kind of judge that will deliver a particular set of political outcomes”. A number of senators questioned the record of the Roberts Court, which has routinely found in favor of corporate interests and government power, apparent evidence of an ideological bent which Roberts promised he would not exhibit as Chief Justice.
Jeffrey Toobin, renowned legal scholar and CNN judicial analyst, wrote in a May edition of the New Yorker magazine:
In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.
Toobin openly charges that Roberts is ideologically aligned with conservative Republicans and more than any other judge on the current Court, has “served the interests, and reflected the values, of the contemporary Republican Party”. A number of Republicans complained of the criticism of Roberts and his numerous 5-4 majorities, many of which have been criticized by jurists as reaching for new ground, beyond both precedent and written law.
Franken, like Whitehouse and others, expressed concern that conservative judicial activism is distorting and eroding long-standing Constitutional protections. He also went on to add that Americans are facing new barriers to defending or securing their basic Constitutional rights. He said the Supreme Court is the “last place” individuals can go to defend their civil liberties, or to defend their property, or the free flow of information, voting rights, privacy or reproductive health and rights.
Franken’s opening statement was also in a way the closing of the committee’s platform declarations for the hearings, and he encapsulated the general devotion to the Constitution expressed by senators from both parties, and later by Judge Sotomayor herself. He said he was “here to learn from you” and that he would want to know about her views on the separation of powers, balancing individual rights against “more powerful interests”, “open access to the internet” and campaign finance reform, specifically.
Sotomayor echoed the sentiments of several of those gathered, as well as those often expressed by Pres. Barack Obama, that “in no other country is my story even possible”. She thanked the senators for their cordiality in meeting with her in 87 private sessions prior to the opening of these hearings. She described her meetings with the senators as “an illuminating tour of the 50 states” and their people.
She praised her mother for raising her and her brother alone, and for teaching them that the secret to success in America is education. She added that “I try to pass on this legacy by serving as a mentor and friend to my many god-children”. She noted that her first job after law school was as an assistant district attorney in New York, where she saw children abused, “families torn apart by the needless death of loved ones”.
She said she had participated in over 450 decisions as a trial judge, presiding over dozens of trials. She was appointed to the federal bench by George H.W. Bush and elevated to the Court of Appeals by Bill Clinton. She said she had “witnessed the human consequences of my decisions”, making sure to explain that none of those decisions were made to serve the interests of one litigant over another.
She promised to defend the Constitution, to “apply the law, not make the law” and to “hew closely to precedent”, as laid down by the Supreme Court and her own circuit court of appeals. She pledged “to strengthen both the rule of law and faith in judicial impartiality”, making sure that all of her decisions are “commanded by the law”.