Commentary: Judge Sotomayor's confirmation hearings

Supreme Court nominee Sonia Sotomayor visits with Sen. Richard Durbin (D-IL).
Supreme Court nominee Sonia Sotomayor visits with Sen. Richard Durbin (D-IL). Olivier Douliery/Abaca Press/MCT

On Monday, the Senate Judiciary Committee will begin confirmation hearings for U.S. Court of Appeals Judge Sonia Sotomayor, President Barack Obama's first Supreme Court nominee.

Senator Patrick Leahy (D-Vt.), Chairman of the committee, scheduled the confirmation hearings promptly after the nomination so that Sotomayor could expeditiously answer questions regarding her perspectives and some criticisms of the jurist's jurisprudence.

Senators must use this opportunity to learn as much as possible about Judge Sotomayor to effectively discharge their important constitutional responsibility to provide advice and consent respecting the President's nominee.

Since 1987, the confirmation process has grown increasingly contentious, and with it, experiences accusations and recriminations, partisan infighting and paybacks.

These factors are acute because the Supreme Court is the nation's highest tribunal. It resolves disputes over life, liberty and property, comprises only nine members, and has infrequent turnover.

Confirmation hearings, during which the entire country's attention is focused on the nominee, are the fulcrum of the process.

The Judiciary Committee's 19 members pepper a nominee with a broad spectrum of questions in proceedings which television simultaneously broadcasts to millions. This setting provides senators enormous temptations for playing to the audience and also to attempt to trip up the nominee, who experiences intense pressure to carefully and accurately answer many difficult questions.

Some astute observers — including Vice President Joe Biden — have questioned whether the proceedings' disadvantages outweigh their benefits. Indeed, no Supreme Court nominees testified before the 1930s.

Regardless of the hearings' efficacy, they now constitute permanent fixtures, and all Supreme Court nominees must run the gauntlet.

Nonetheless, senators can institute numerous measures that will improve the value of the process and enhance the quality of the information which the Senate and the public derive from the proceedings.

Of course, Senate members can ask any questions they wish, and nominees are free to not answer queries which they deem improper. Senators may ask nominees about their judicial philosophies, jurisprudence, ideological perspectives and even specific areas of the law or particular cases. However, Senators have a solemn duty to ascertain that nominees possess the requisite intelligence, independence, diligence, character and judicial temperament to be excellent Justices. Senate members can broadly probe these attributes and should rigorously, but fairly, question nominees.

However, Senate members should be realistic about how directly nominees can answer certain questions.

The more questions relate to issues that nominees, if confirmed, might resolve, the less likely it is that nominees will answer them.

This occurs because nominees must decide cases on their law and facts and may have to recuse themselves, were the answers to suggest that they had prejudged issues. When senators pose questions, which might require subsequent recusal, nominees should respectfully decline to answer, as Chief Justice John Roberts and Justice Samuel Alito often did in their hearings. If nominees refuse to answer so many questions that senators believe they cannot ascertain nominees' qualifications, senators may vote no.

When Judge Sotomayor's confirmation hearings open, senators should ask questions which probe her qualifications for Supreme Court service. The jurist should answer these questions as fully and carefully as possible and politely refuse to answer questions that might trigger subsequent recusal, if she is confirmed.


Carl Tobias is the Williams Professor at the University of Richmond's School of Law.

McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.

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