How Both Sides Should Handle Sotomayor Hearings

Today marks the beginning of the hearings into the confirmation of Supreme Court nominee Sonia Sotomayor. Based on past history we can expect today to be more style than substance, with both the nominee and the members of the committee offering introductory statements and setting the ground for the rest of the hearings. As the hearings proceed I think it is proper for both parties to consider just how they ought to proceed.

To begin with I think it is perfectly reasonable in these kind of hearings for members of both parties to consider not only qualifications but also the reasonableness of the judicial philosophy of the nominee. We have a two stage process of nomination and confirmation for a reason and the process is not intended to be a rubber stamp for any President. If the only issue was qualifications we’d hardly need a confirmation process.

This is not to say that a Senator should vote against a nominee simply because they are not the one that particular Senator might have chosen. I think it fair to say that in every single Supreme Court nomination since the start of the Republic that there were many Senators who did not agree with the judicial views of the nominee.

Rather the Senators should consider if the nominee is in the judicial mainstream. One can be significantly to the left or the right and still remain within the mainstream and that is something each Senator should careful consider.

For example it is remembering that during the confirmation hearings on both Justice Alito and Chief Justice Roberts there was little doubt that they were very well qualified for the position, and yet a significant number of Democrats (including then Senator Obama) chose to vote against the nominees on grounds of philosophy.

As I see it, this was at least in part a partisan move as I do not see how either nominee could be reasonably seen as being outside the mainstream. Indeed a group of Senators (again including then Senator Obama) indicated they would support taking the extraordinary step of blocking the nomination of Alito through a filibuster. This is not to say that some members might not have had sincere reasons for the no vote, but I think politics played more of a role in the process than it should have.

Perhaps a better example of how the hearings should proceed might be the two nominees submitted by President Clinton. In both cases the nominees were well qualified and in both cases they won easy confirmation. Only three Senators opposed Justice Ginsburg and only nine opposed Justice Breyer.

This contrasts with the twenty two votes against Roberts and the forty two against Justice Alito. If you look at the judicial views of the four nominees I think it is reasonable to say that Ginsburg and Breyer have proven to be just as liberal as Roberts and Alito are conservative.

So with this little bit of history, how should a reasonable Republican or Democrat proceed with regard to the hearings and the confirmation process ?

I think it would be perfectly fair for Republicans to ask strong questions of the nominee to insure her views are within the mainstream. It is also reasonable for them to investigate as to her qualifications and skills, though I suspect this would be a fairly short process as she does seem well qualified.

If after reviewing the answers from Ms. Sotomayor a senator decides that they do not think she is qualified or if they think her views are outside the mainstream, or if they are not satisfied with all of her answers, then it is perfectly reasonable for them to vote against her.

On the other hand I do not think it would be fair for any move to be made to filibuster the nominee, nor do I think it would be reasonable for a member to enter the confirmation process having decided in advance how they plan to vote. A fair hearing requires a fair mind.

On the other side of the fence I think it is perfectly reasonable for Democrats in the Senate to actively support the nomination if they think the nominee is well qualified for the position. I also think it would be reasonable for them to make sure the Republicans don’t go too far in opposing the nomination.

But I do not think it is fair for anyone to label a person racist for opposing the nomination. Just because the nominee happens to be a woman or happens to be Hispanic does not mean they should not be subjected to the same review as every other nominee. Nor is it reasonable for them to adopt the view that the nominee should be given a free pass, especially given the past history of nomination battles.

In short I would hope to see a process in which both sides respect the views of the other, one where the GOP wages a fair and balanced review of the nominee and the Democrats respect the right of the GOP to do so.