BY ORAMEL SKINNER
The Supreme Court began a new term this Fall featuring a new member, Justice Sonia Sotomayor. With any change in the composition of the highest court comes a flood of commentary on the future of the judicial confirmation process, and so the Harvard Federalist Society invited judicial commentator Ed Whelan to discuss the Sotomayor confirmation process and Supreme Court confirmations with Visiting Professor Sanford Levinson.
Each agreed that the Sotomayor process represented a victory for conservative legal principles and left many progressives frustrated. Whelan noted that Justice Sotomayor did not present a strong argument for any sort of progressive judicial philosophy during her entire hearing. Despite the existence of a nearly filibuster proof majority in the Senate in support of the President, she pointedly rejected President Obama’s “empathy standard” of judging and offered very conservative sounding answers to basic questions of judicial philosophy. According to Whelan, Justice Sotomayor “sounded much like a conservative, or a caricature of a judicial conservative, in much of her testimony.”
Whelan saw this approach as evidence that “conservatives have succeeded in coming up with language which is persuasive and accurate” in portraying conservative judicial beliefs convincingly. Prof. Levinson agreed that in the confirmation process “there was a triumph of a certain type of language” regarding the court, though he noted that he thought this language so extreme and binary that no one actually believed it in practice.
Looking into the future beyond the most recent confirmation process both men also agreed that, in the words of Whelan, the “era of Republican disarmament on the Supreme Court is over.” Unlike the confirmations of Justices Ginsburg and Breyer, Republican Senators engaged on substantive issues of legal approach and philosophy during the most recent confirmation battle, and thirty-one Senators voted against the confirmation of Justice Sotomayor despite her clear path to confirmation. To both Professor Levinson and Mr. Whelan this marked a new era of Supreme Court confirmation battles.
To both commentators this movement toward a more pointed discussion of judicial philosophy a good. Whelan thought that it was a “healthy thing” to have a “debate about judicial philosophy.” Levinson bemoaned the fact that Democrats and the President had shown a lack of backbone and leveled criticism at the handling of those nominated for the Supreme Court.
Professor Levinson also criticized the practice of employing nominee handlers. “I would be interested to know how much Justice Sotomayor was affected by handlers.” He noted his desire to see more nominees be open and honest in the process like Judge Bork, but he admitted that post-Bork the best strategy is to “clam up or deceive.” According to Professor Levinson an example of handlers having too much of an impact on a nominee was Justice Thomas. “Justice Thomas did himself a disservice by listening to his handlers, and as a result many have dismissed him intellectually.”
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