Once again, in the still-unfolding confirmation hearing on Supreme Court nominee Sonia Sotomayor, we are being treated to a lesson in why the Republicans rarely achieve their goals in Washington. This is largely the result of their inability or unwillingness to play hardball; the failure to ask tough questions; and allowing nominees for high office to bloviate their way around answering direct questions.
First of all, let’s establish one ground rule: there is no legal or constitutional prohibition against requiring a nominee for the federal bench, including the United States Supreme Court, to answer probing questions about their judicial philosophy and of their views on fundamental rights. Should not this be the price they pay for confirmation? The modern notion that a nominee must be permitted to refuse to answer tough questions about whether they believe it is the job of a judge to protect fundamental liberties enshrined in the Bill of Rights, for example, is a made-up rule of recent decades designed by advocates for particular nominees to protect them from answering questions that might actually reveal their fundamental philosophical beliefs. (One exception to this “kid gloves” approach was the manner in which the then-Democratic majority beat up on Supreme Court nominee Robert Bork’s philosophy.)
Republicans consistently will come close to the brink of actually demanding real answers to relevant questions, but they then invariably draw back when confronted with the apparently impenetrable shield that, the “Supreme Court may after all one day have to render a decision on that issue, so I am bound not to reveal anything of my views on that fundamental right.” Poppycock. If we cannot find out what are the fundamental philosophical views of a prospective Supreme Court nominee, why should they even be considered for confirmation? Is there any other category of nominees for whom it is more vital that we be made privvy to their views of (and the value they place on) our fundamental rights and liberties, than prospective members of the United States Supreme Court?
Let’s take two fundamental rights enshrined and guaranteed in the Bill of Rights: private property rights and firearms rights; the first is guaranteed in the Fifth Amendment to our Constitution and the latter in the Second. Judge Sotomayor was questioned about both at her hearing yesterday.
Sen. Herb Kohl of Wisconsin asked her about her view of the fundamental right of a private property owner not to have their propertry taken by the government under condemnation proceedings just so the property could be used for a more lucrative purpose (as was allowed by the Supreme Court in the infamous, 2005 Kelo v. City of New London case that was supported by the justice Sotomayor is to replace — David Souter). When “pressed” to provide the American people her view of the importance of private property rights as opposed to forced government “takings,” Sotomayor was allowed to reveal nothing. She said she couldn’t answer such questions other than to “follow” precedent, not to “pre-judge,” and to keep “an open mind.” Boy is that encouraging — another Supreme Court justice who won’t even admit to believing in and supporting the fundamental right to protect private property against improper taking by the government.
Sotomayor’s views of the Second Amendment’s guarantee of the right to keep and bear arms is similarly superficial and disappointing. When pressed by Sen. Orrin Hatch of Utah on this issue, Sotomayor once again, and repeatedly, assured us she would “bring an open mind.” Frankly, I’m ready for a Supreme Court justice that has the judicial backbone to say they actually believe in, understand, and will actually defend – through judicial decisions – those fundamental rights guaranteed us in the Bill of Rights. I’m tired of nominees saying in effect that they will “keep an open mind” on whether we even have such fundamental rights as are specified in the Bill of Rights.
The furthest Sotomayor would go on the Second Amendment question (and Hatch did press her pretty hard, but then, true to form, backed away) was to say that if the Court ever did decide in its wisdom to incorporate the Constitution’s guarantee of the right to keep and bear arms as against state government infringement, then perhaps she might recognize it as a fundamental right! Such reasoning turns the Fourteenth Amendment’s guarantee that our fundamental “privileges or immunities” will be protected against infringement by the states, on its head.
With confirmation questioning like this, is it any wonder our fundamental rights – which are supposed to be guaranteed by the very Constitution judges such as Sotomayor take an oath to protect and defend — are being dramatically reduced by both the Senate and the federal judges its members confirm?