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Sunday, June 7, 2009

The Hangin’ Judge Appears Before the Senate: Dylan, Sotomayor and the case for confirmation

The hangin' judge came in unnoticed and was being wined and dined,

The drillin' in the wall kept up but no one seemed to pay it any mind.
It was known all around that Lily had Jim's ring
And nothing would ever come between Lily and the king.

Listening to a Bob Dylan song is a lot like taking a Rorschach test. Nothing really changes, yet somehow it’s different every time.

Ambiguity won’t, however, be a factor when Sonia Sotomayor appears before the Judiciary Committee later this week. Senate confirmation hearings tend to resemble more closely a litmus test than Herman Rorschach’s infamous, highly interpretive inkblots.

As it turns out, delving into the personal psyche of our Supreme Court nominees wasn’t always such a public affair. In fact, 101 nominees went before the Senate without having to utter a single word in public.

The appearance of Louis D. Brandeis before the Judiciary Committee in the spring of 1916 not only set a precedent of opening the hearings to public, it defined the modern selection process. Nominees may be inches away from joining the highest court in the land, but before they do they must first pass through the court of public opinion.

And so, for the last 90 years nearly every nominee has been called on the Congressional carpet and begrudgedly been asked to strip down to his or her briefs.

For some, it’s been tough sailing. Clarence Thomas was asked to appear 11 times before finally being confirmed in 1991 by a razor-thin margin of 52-48. For others, the seas have been decidedly calmer. Three of Reagan’s five nominees were confirmed unanimously. And while the outcome isn’t always predictable, the vetting process most certainly is.

Of course, most of the nominees have an advantage as they prepare for what is likely to be the last job interview of their career, and Judge Sotomayor is no exception. She’ll know the questions going in.

And if the past three decades are any indication, only three matter—abortion, gay marriage, and ‘judicial activism.’

On the first two issues, Sotomayor’s record is ambiguous at best. She only has one opinion regarding abortion. But never having actually ruled on the issue makes her real resolve anyone’s guess. And even though Sotomayor’s record on civil and gay rights is non-existent, gay legal activists tend to think she’ll go to bat for them should she be called to the bench. On the issue of ‘judicial activism, the Committee actually has something to go on: Sotomayor’s words.

Her 2005 off-the-cuff comment stating that, “the court of appeals is where policy is made," might not be enough to hang the brash, opinionated judge, but it’s been enough to set the conservatives right.

In the end, however, it hardly matters how Sotomayor answers any of the questions that she’ll be asked next week. Bar an unforeseen debacle, all Sotomayor needs to do is show up, keep her responses vague and just be herself. Of course, it helps that “being herself” means being an Hispanic, a woman, and someone who, by all accounts, is not only affable but the embodiment of the American dream.

Of the 158 Supreme Court nominations sent to the Senate to date, only 12 have been rejected, seven have declined to serve and another 11 nominations have been withdrawn. The President and members of Congress long denied there is any ‘test’ for the Supreme Court gig. Yet when the locus of your success revolves around your position on three pivotal issues, how can that not be considered a litmus test?

Robert J. Bork may have gone out with a bang, appearing 12 times before the Judiciary Committee before being rejected by the Senate by a vote of 42-58. Harriet Miers might have gone with a whimper, withdrawing her nomination in 2005 without having to make a single trip to the Hill. But it’s almost a foregone conclusion Sotomayor will successfully stonewall the few Republican Senators left who can scrutinize her.

So knowing this going in, perhaps it’s time to abandon that lackluster litmus test in favor of something that actually gives us some insight into what kind of judge she’ll really be.

Instead of asking Sotomayor three questions she isn’t going to answer anyway, perhaps just one will do: “How would you have ruled in the case of Lily, Rosemary and Jack of Hearts?”

After all, if any of Bob’s songs are open for interpretation, the second song off side two of his classic 1975 offering, Blood on the Tracks, is a perfect candidate.

An allusive account centered around a card game gone decidedly wrong, if Sotomayor can untangle the twisted plot long enough to figure out just what that ‘one good deed’ Rosemary did before she died, she’d definitely have my vote…

Rosemary started drinkin' hard and seein' her reflection in the knife,
She was tired of the attention, tired of playin' the role of Big Jim's wife.
She had done a lot of bad things, even once tried suicide,
Was lookin' to do just one good deed before she died.
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