The confirmation hearings for a perfect Obama candidate (overall a clearly qualified moderate but one with some signs of independence and forceful views -- someone whose heart appears to be in the right place, even if you might want a more liberal voice in certain respects) has begun. Does it mean something that it has begun during the All Star Break?
Dahlia Lithwick, a tad bit much, provided a somewhat cynical view of the Sotomayor hearings. The process as a whole had led to more information and overall value than some analysis suggests, while the less attractive components are likely to occur in some form at any rate. The process provides an important educational function (bringing with it some signs of mistaken views and prejudices). As suggested by Jack Balkin, the confirmation process also is a type of continual constitutional convention:
But what the candidates actually say is far less important than what the Senators expect them to agree with. By shaping the constitutional catechism at hearings, the Senate gives an account of what Americans expect from their Supreme Court Justices. This does not force Justices to do anything in later cases; but it does set forth the boundaries of what is "on the wall" from the standpoint of constitutional assumptions. In this way the Senate, which is always playing to public opinion and various constituencies within the public, helps to construct the boundaries of the reasonable and the mainstream in constitutional law.
The introductory remarks from the individual senators, including in a negative way from some of the Republican senators* (underlining why they should be in the minority; Glenn Greenwald on Twitter underlines the point), provide a basic reflection of this. Talkleft, for instance, rightly emphasized the remarks of Sen. Whitehouse:
Look at our history. America's common law inheritance is the accretion over generations of individual exercises of judgment. Our Constitution is a great document that John Marshall noted leaves "the minor ingredients" to judgment, to be deduced by our Justices from the document's great principles. The liberties in our Constitution have their boundaries defined, in the gray and overlapping areas, by informed judgment. None of this is "balls and strikes."
The whole process provides a useful function. As with everything, there are flaws. But, it also has clear value. In some imperfect way, the senators are not just representing themselves, but all of us. Not just the non-lawyers, like Sen. Franken (nice intro remarks).** It is messy, but political debates back in the times of Jefferson underline the differences are often more in degree than kind. In part, the fact it is more messy is a good thing, since the courts are so much more active (not the same as "activist") and powerful, and the process overall more democratic. And, if you do not want that, amend the Constitution so that it is not a political process.
Improvements are probably possible, but Scott has a good overall take.
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* The continual b.s. spewed by these senators include Sen. Hatch (oh so moral) lying that people who do not want us to take a few strand comments out of context (cf. Sen. Feingold's remarks) means they want us to ignore her speeches totally. Or, stereotypical uses of "empathy" or digs against President Obama, at times with a smile that is more like a sneer (sen. Graham).
Then again, Sotomayor said: "The task of a judge is not to make the law – it is to apply the law." That is, let's be honest, a bit lame. But, it's how the game is played. If we wanted more blunt truth telling, we would be talking about Justice Pamela Karlan.
** The junior senator from NY, as of now up for a major primary battle, knows how to sell herself. She lucks in here by getting prime air time as one of the two NY senators formally introducing Sotomayor, though her penchant for talking a lot got her in a bit of trouble at the end, Sen. Leahy basically cutting her off. She got in another twenty seconds.