Liberals Lash Out Against Sotomayor Testimony

As the hearings get underway for a second day of questioning, it appears Republicans aren’t the only ones who think Sotomayor has been less than candid in her testimony.

The Center for Reproductive Rights, a leading abortion rights group, this morning is calling for more questions on abortion, with President Nancy Northup complaining that Sotomayor “said little about her own understanding of the issues underlying Roe and the Court’s subsequent decisions on abortion rights.”

And the Constitutional Accountability Center's Doug Kendall noted that, despite all her speeches to the contrary, “empathy, perspective and understanding pretty much went out the window” in her testimony.

Kendall called that a “smart political strategy” that “comports well with her judicial record.” But at least one prominent liberal academic strongly disagrees.

In an online debate last night, liberal Georgetown Law Professor Mike Seidman declared himself “completely disgusted” by her testimony.

Seidman, who clerked for liberal icon Thurgood Marshall, wrote:

“If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts?”

“Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.”

As one of my colleagues pointed out, Seidman clearly isn’t gunning for the Sotomayor holiday card this year -- unlike so many legal experts and analysts who have so eagerly defended her performance as a nominee (knowing, incidentally, they will soon be appearing before her as a justice.)

Yesterday, it was striking to see Sotomayor dance around issues, decline to defend liberal philosophy and go on to specifically reject the so-called legal approach of the man who nominated her, Barack Obama.

It prompted Lindsey Graham to complain that she was sounding a lot like John Roberts -- and she did on some answers -- and ask, “Who are we getting here?”

Sotomayor said, for example, that a right to privacy was settled, according to Supreme Court precedent. That wasn’t a whole lot different than what Roberts said in his hearing: A right to privacy is settled, under the principles of stare decisis.

In other words, a right to privacy is settled unless the Supreme Court says it’s not. Not exactly what Nancy Northup wants to hear from a liberal nominee.

But it was the sweeping philosophical questions that were most surprising, as this exchange with Graham. He asks about a classic liberal/conservative philosophical divide.

GRAHAM: Do you believe the Constitution is a living, breathing, evolving document? SOTOMAYOR: The Constitution is a document that is immutable to the sense that it's lasted 200 years. The Constitution has not changed except by amendments. It is a process -- an amendment process that is set forth in the document. It doesn't live other than to be timeless by the expression of what it said. What changes is society. What changes is what facts a judge may get.

That’s nonsensical. Obviously, the name of the game is confirmation, but if you have 60 votes, why not explain your views on the role of the courts and liberal judicial philosophy? Justice Breyer wrote an entire book on this! He and Scalia have gone on the road to debate whether the Constitution is living or dead (I moderated one of their debates and just tried to stay out of the way). This is an easy one! It shouldn’t be that difficult to knock it out of the park.

Obviously, Sotomayor can't answer questions about how she would rule on issues that might come before her, so it's a different point than sounding like Roberts on those answers. But it's her responses on theory, the sweeping questions of philosophy that are frustrating liberals like Seidman.

“One of the things she said that was striking yesterday was 'judges should never decide cases out of fear.’ But her testimony came out of fear,” Seidman told me this morning. “It doesn’t speak well of her.”

And with a decisive majority in the Senate, “it doesn’t take a lot of courage,” Seidman said. “It takes only a little.”

Seidman shares Obama’s views that judges naturally bring to bear a set of presupposed moral views when they’re deciding hard cases. But Sotomayor explicitly disavowed that in an exchange with Jon Kyl:

KYL: Let me ask you about what the President said. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon. And then he also said, in 95 percent of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart? SOTOMAYOR: No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the President does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The White House would say Sotomayor isn’t an ideologue, that you won’t get philosophy or theory from her.

But Seidman said Sotomayor’s testimony “is not without cost,” because “she knows that her description of what judges do has no contact with reality.”

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