Questing for Atlantis

I’m going to be completely honest here. I have not done a whole lot to follow everything with Sonia Sotomayor and the lead-up to her Senate hearing. I’ve read the blogs and the like, but certainly not gone out of my way to study the issue.

I think there’s a good chance that she’ll be confirmed, but that it’ll be by a razor-thin margin. I also am inclined to think that there’s a disconnect between how she’ll act on the bench (where she seems profoundly unimaginative from what I’ve read about her record of decisions) and how she acts when speaking publicly, so she’s probably not as much of a danger as she’s been made out to be – but those public comments are pretty damn awful, so I’m against giving her the chance to prove me wrong on what she’d be like as a Supreme Court Justice.

That being said, I’m going to make two other comments. One, I think Jamelle Bouie is completely off-base when he says:

For conservatives, the Court’s long era of white male dominance was marked by impartiality and fairness.  And now, with the possibility of greater minority representation on the bench, we have to worry about bias and prejudice in the court’s opinions.

Problems with Sotomayor aren’t about people being bigoted against Hispanics. Sure, this is probably true for various members of the center-right movement (in Congress and out), but it has nothing to do with a true center-right position. No serious political commenter that I know of suggests that decisions like Dredd Scott or Plessy v Ferguson were anything but horrific. The reason bias and prejudice is such an issue with Sotomayor is that, unlike most of those who have preceded her, Sotomayor has celebrated how her experiences color her vision and openly professed to embrace that, rather than attempt to sublimate such influences and focus solely on the issue of the Rule of Law.

It’s simply logic that empathy and the Rule of Law are incompatible with each other. The Rule of Law says everyone plays under the same set of rules. Empathy (in this context) suggests special provisions ought to be made for people or groups based off of their experiences. These concepts are fundamentally incompatible, and considering most people think preserving the Rule of Law is pretty important, yeah, it’s something that should be brought up with Sotomayor.

The second comment has to do with the hearing process itself, namely that I really like Randy Barnett’s proposal on how the Senate ought to do these confirmation hearings (even though they likely never will). Here’s a sample from it:

Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment “incorporate” the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?