Educating America About a Judge and Other Summer Follies

By Stuart Rothenberg


This column first appeared in Roll Call on July 16, 2009.

In a stunning statement Monday sure to affect her confirmation prospects, Supreme Court nominee Sonia Sotomayor pledged her “fidelity to the law.” That must have been regarded as big news to the folks over at the Washington Post, since that was the bold headline on Page One of Tuesday’s newspaper.

Tomorrow’s headline in the newspaper may well be “Dog Bites Mailman,” or possibly, “Wednesday Followed Tuesday.”

The New York Times apparently wasn’t as excited by Sotomayor’s stunning admission. Its headline, “Judge Focuses on Rule of Law at the Hearings,” was more matter-of-fact, though the newspaper’s first paragraph noted that the nominee said that a judge’s job “is not to make law” but “to apply the law.” Wow.

The Boston Globe’s Tuesday headline about the hearings was a straightforward “Sotomayor Makes Her Case,” but the subhead was “Nominee Pledges Allegiance to the Law.” Double wow. Just once, mind you, I’d like to hear a Supreme Court nominee refuse to pledge allegiance to the law. Imagine if Sotomayor, for example, had said that the law was a bucket of warm spit. Now that would have been newsworthy.

One of the Senators who introduced the nominee, New York’s Charles Schumer (D), crawled way out on a limb to suggest that the judge “puts rule of law above everything else.” (Personally, I put a flawless third-to-second-to-first double play or my mother’s chopped chicken livers above the rule of law, but I suppose that disqualifies me from ever being on the Supreme Court.)

So let’s see, the big news is that Sotomayor is going to follow the law, as opposed, I guess, to following the editorials of the New York Times, the public opinion polls or the sentiments of bloggers over at Daily Kos or RedState. My, that’s a relief. I really was afraid that Sotomayor might call someone at random from the Cedar Rapids phone book to ask how to vote on a case.

We are told repeatedly that each confirmation is an opportunity to teach the American public about the political process and the law, but as far as I can tell, this confirmation, like other recent ones before it, will be little more than an opportunity for Senators to ramble on about their own views and for the nominee to duck and dodge her way to confirmation.

The fact of the matter is that you could ask anyone currently on the Supreme Court and they, too, would say they had “fidelity to the law,” are “impartial” and “apply the law,” not make it. And yet, they can have totally different views of cases and produce wildly different opinions.

No judge in his right mind who wanted to be confirmed by the Senate would testify that he planned to “make law” from the bench. But it’s done all the time. Call it “interpreting the Constitution” if you’d like, but many Supreme Court decisions have the effect of creating rights or obligations that did not exist.

For Sotomayor, the confirmation process is now about not making mistakes, not being too clear about where she stands. If this is a “teaching moment,” it’s a lesson about platitudes, vagueness and glittering generalities. By all means, let’s cover it 24/7.

The Sotomayor coverage is only the latest spectacle. This has been one of the weirder summers in recent memory, and we still have many more weeks ahead of us for other strange developments to materialize.

The media’s frenzy over South Carolina Gov. Mark Sanford’s (R) “disappearance” and subsequent acknowledgement of an affair with a woman in Argentina could have been short-circuited only by something as unexpected as entertainer Michael Jackson’s death, an ending that was as bizarre as the rest of his life was.

Since I expect Members of Congress to try to politicize everything and to interject themselves into every pop culture development, I wasn’t shocked when Rep. Sheila Jackson Lee (D-Texas) announced that she would introduce a resolution honoring the late singer.

Unfortunately, Speaker Nancy Pelosi (D-Calif.) quickly snuffed out that idea. That’s too bad. I would have loved to hear the House debate whether to pass that resolution. In fact, I would have paid to hear it. (Maybe that’s a way for Congress to raise additional revenue: pay-per-view Congressional floor debates over mind-bogglingly silly resolutions. Of course, C-SPAN might object.)

Then there was Sarah Palin, who didn’t merely announce that she wouldn’t seek re-election; she announced that she was stepping down from her post almost immediately. After she said something about lame ducks and dead fish, she went fishing.

Conservatives were outraged at the criticism of the Alaska governor, even though if the same thing had been done by a liberal Democrat they would have raked that person over the coals. And liberals slammed the governor for her action, even though if it had been done by a liberal Democrat they would have defended her just like the conservatives did.

Just another summer in your nation’s capital. Health care reform, anyone?

2009 © Roll Call Inc. All rights reserved. Reprinted with permission.