Jeffrey Toobin has an insightful critique of the Supreme Court nominee confirmation process in the July 27 issue of The New Yorker (you can read his piece here).Focusing on several exchanges from the recently-concluded hearings for Sonia Sotomayor, Toobin argues that Senators (from both parties) and judicial nominees misrepresent the role of Supreme Court justices in our society by downplaying the amount of discretion that justices have in reaching their decisions.
According to Toobin, all Supreme Court nominees since Robert Bork (who discoursed at length, during his confirmation hearings in 1987 about his actual judicial philosophy and was rewarded with a rejection of his nomination) have stated that the role of a Supreme Court justice is to fairly apply "the law" in light of the facts and circumstances of the case before the Court.
The problem, says Toobin, is that there is often no "law" on which to rely (separate from what a majority of the Justices say it is), and for that reason a potential Justice's philosophy -- legal, political, intellectual -- is far more important than his or her ability to "call balls and strikes" (as Chief Justice Roberts put it during his own confirmation hearings).
Here is an excerpt from Toobin's piece:
Toobin does not offer any remedies for the misleading nature of the current confirmation process. However, I am discerning increasing frustration -- from both liberal and conservative commentators -- with the milquetoast, anodyne nature of the Roberts, Alito, and Sotomayor hearings, so it will be interesting to see whether a future nominee will dare to approach the confirmation process in the more assertive ("Bork-ian"?) style.[Judge Sotomayor] suggested that the job of a Supreme Court Justice is merely to identify the correct precedents, apply them rigorously, and thus render appropriate decisions. In fact, Justices have a great deal of discretion—in which cases they take, in the results they reach, in the opinions they write.
When it comes to interpreting the Constitution—in deciding, say, whether a university admissions office may consider an applicant’s race—there is, frankly, no such thing as “law.” In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved. In reaching decisions this way, the Justices are not doing anything wrong; there is no other way to interpret the majestic vagueness of the Constitution.
But the fact that Judge Sotomayor managed to avoid discussing any of this throughout four days of testimony is indicative of the way the confirmation process, as it is now designed, misleads the public about what it is that Justices do.
