The Sotomayor hearings have value both for the questions and the answers. This does not mean both lack problems. Heather K. Gerken points to one problem:
The hearings also seemed to have drained the life out of the law itself. Listening to the exchanges, you would never know that the law is a vibrant entity, a remarkable blend of real-world facts and abstract principles. You would never know that lawyering involves nuance and thought. You would think that lawyering is a witless, mechanical exercise and would be surprised to discover that anyone could find a life in the law remotely inspiring.*
This is furthered by fears of "judicial activism" and worries about use of "empathy" or (the beaten to death) speech by Sotomayor that race and gender (duh) affects how a judge acts. As Glenn Greenwald twittered "The irony of all of this: Sotomayor is probably in the upper 10th percentile of mechanistic/legalistic judges - if anything, it's a fault." In fact, this -- in some fashion -- comes out in her answers, which underlines the value of the process. And, she might want to dance around it (some exaggerate her perfidy in this), but Sotomayor noted in an answer to Sen. Cornyn:
And the process of judging, for me, is what life experiences brings to the process. It helps you listen and understand. It doesn't change what the law is or what the law commands.
The "process" includes actual decisions. Dahlia Lithwick, perhaps stepping a bit beyond Sotomayor's explicit words, argued what seems to be a fair reading overall:
Her message today is also clearer: I am human, my background makes a difference. I am not sorry for exploring whether and how it makes a difference, but when I apply the law to the facts—if you look at my record—the law always wins.
Sotomayor's mantra is that she follows the law. The Constitution stays the same even if different people bring different experiences to the table. This is a bit too of a overly cute way of looking at things. A fair reading of her comments, even if you have to read between the lines, underlines that in a real way the "law" develops, it changes. A response to Sen. Cardin:
That's what precedents do. They provide a framework. The Constitution remains the same; society changes. The situations that brings before courts change, but the principles are in -- are the words of the Constitution, guided by how precedent gives or has applied those principles to each situation, and then you take that and you look at the new situation.
Many want nominees to be more substantive in their responses, but Sotomayor repeatedly refused to state what she personally believed a certain provision required. She looked at what the Court did. The process can give us less vanilla in this area, even if specific statements are really out of bounds on ethics grounds because it would in effect be a sort of prejudging. Long term appellate judges are better here, since others just might have out of court statements that actually address such issues. Sen. Coburn, a non-lawyer rather conservative sort provided some firm questioning, Scotusblog was impressed, including some perfectly fine questions like the role in technology when deciding cases. She did not need to avoid the question. Nor this one:
I don't want you to answer that specifically. What I would like to hear you say is, how did we get there? How did we get to the point where something that's spelled out in our Constitution and guaranteed to us, but something that isn't spelled out specifically in our Constitution is? Would you give me your philosophical answer?
The question respected the (in his view) explicit right to bear arms as compared to more implied (ditto) rights such as privacy. It's an interesting question on how the law develops, but as Gerken notes, that flexibility and life scares some people. Also, this back and forth:
In my experience, when I've seen other judges cite to foreign law, they're not using it to drive the conclusion. They're using just to point something out about a comparison between American law or foreign law, but they're not using it in the sense of compelling a result.
COBURN: I'm not sure I agree with that on certain 8th Amendment and 14th Amendment cases.
Fair enough, but the answer was not followed up, since it did not involve her infamous speech (the fact he focused on other issues, including self-defense and the meaning of "death" underlines why I liked his round of questions). I share Randy Barnett's thought that it was thin gruel at times (though I question if past hearings really offered us much more). For instance, Sen. Feingold asked her the process where a right is incorporated by the Fourteenth Amendment. This was in connection to the Second Amendment, but her answers did not even state the overall process used generally. Her answer also was a bit garbled as RB notes (he is more harsh).
[Update: The continual push for her to recuse herself if a Second Amendment case, not just the one she herself decided, does warrant harsh words. OTOH, both Keith and Rachel ignored that Coburn actually asked some real questions to focus on some lame joke he made ... after Sotomayor herself joked about a self-defense scenario she was setting up. That sort of thing annoys me ... Keith does it a bit too often.]
The use of Youngstown (actually Jackson's concurrence, which is at times treated as the holding) was as mandatory as it was token. Scotusblog (live blogging) appears to be correct that she was more comfortable talking about her life as a lawyer. Why not? No pratfalls about "judicial activism" there. She overall came off as intelligent, smart and carefully reasoned. Trying to find out her ideology ... well, good luck there. This includes (second round) when the issue of same sex marriage arose though she carefully addressed Baker v. Nelson.
BTW, overall, Franken looked a bit rough in his questioning. Had a light Perry Mason moment that got a laugh though. His comments on net neutrality did not really fit it well with the question related to a specific case. But, he got a good point in about the word "privacy" not specifically being in the Constitution being only so important. I'd add Dahlia thought he did well overall too.
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* She continues:
Someone reading these words might think that these are all code words for describing a "living Constitution," that they are intended to depict law as a tool for social reform. But I think my description would be instantly recognizable to lawyers and judges who flatly reject what has become the traditional liberal take on the law. Lawyering is a craft in which all of us can take pride.
I blame neither the Senators nor Judge Sotomayor for the rather sad and inert picture of the law they've given us. This is simply what judicial confirmation hearings have become. Still, it's too bad that what is perhaps the law's most public moment gives the public so little sense of what a remarkable institution it is.
I'd add that how can you not blame the senators? They are at least a wee bit at fault in how they run the process, right? As TalkLeft (or rather, one member) noted, the Republicans' (and here again Coburn underlines it is not just ideology alone) one track mind focus on the 'wise Latina' issue didn't help. Nice comment that pablum is better than b.s.