In his opening statement Monday, Sen. Lindsey Graham (R-SC) told Supreme Court nominee Sonia Sotomayor: “I don’t think anybody here worked harder for Senator McCain than I did, but we lost, and President Obama won. And that ought to matter. It does to me. … Unless you have a complete meltdown, you’re going to get confirmed.” One day of opening statements, and two days of questioning later, it does not appear that Sotomayor had the “complete meltdown” necessary to derail her nomination. But that does not mean her confirmation hearings were a waste of time.
Quite the contrary. Tough questioning by conservative senators afforded Sotomayor a rare opportunity to defend the principles of progressive/liberal jurisprudence. But Sotomayor declined to defend those principles at every turn. Instead, according to Case Western law professor Jonathan Adler, Sotomayor sounded “more like the sort of nominee we would have expected from a President McCain than a President Obama.”
Rejecting the Living Constitution: Sen. Lindsey Graham (R-SC) asked Sotomayor flat out: “Do you believe the Constitution is a living, breathing, evolving document?” Sotomayor then flatly rejected the views of liberal scholars and jurists: “The Constitution is a document that is immutable to the sense that it’s lasted 200 years. The Constitution has not changed except by amendment. It is a process, an amendment process that is set forth in the document. It doesn’t live other than to be timeless by the _expression of what it says.” She later told Sen. Al Franken (D-MN): “[T]he role of the court is never to make the policy. It’s to wait until Congress acts.”
Rejecting Transnationalist Jurisprudence: Sen. Tom Coburn (R-OK) asked Sotomayor: “You’ve been fairly critical of Justice Scalia’s criticism of the use of foreign law in making decisions. And I would like for you to cite for me, either in the Constitution or in the oath that you took, outside of the treaties, the authority that you can have to utilize foreign law in deciding cases in the courts of law in this country.” Sotomayor then flatly rejected the views of established transnationalist jurisprudence leaders like Harold Koh: “I have actually agreed with Justice Scalia and Thomas on the point that one has to be very cautious even in using foreign law with respect to the things American law permits you to. And that’s in treaty interpretation or in conflicts of law because it’s a different system of law.”
Rejecting Obama’s Empathy Standard: Sotomayor even flatly rejected President Obama’s own criteria for selecting Supreme Court nominees, telling Sen. Jon Kyl (R-AZ): “I wouldn’t approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws.”
Was Sotomayor being honest with the Senate Judiciary Committee with these answers? We don’t know. That is a decision each Senator will have to make on their own. At bare minimum though, Sotomayor’s testimony proves that the left is unwilling to defend the core of their judicial beliefs in a public forum. As the New York Times reports: “By forcing Judge Sotomayor to retreat from Mr. Obama’s desire for justices with “empathy,” Republicans have effectively set a new standard that future nominees will be pressed to meet. … Several legal experts said Judge Sotomayor’s testimony might make it harder for Mr. Obama to name a more liberal justice next time.”