DA BONEYARD

Several months ago I was complaining to username pantsblog that the closest thing we had to a public intellectual in America was Thomas Friedman, famous for being a writer with some grand ideas and a writing style that makes Judith Butler’s writing look like cautious language deployment. (queer theory joke!)

Anyway, since then I’ve dug into the works of one Ronald Dworkin, and basically have become enthralled with this guy’s legal writing. Here’s a chunk:

Sadly, practically everyone concerned in judicial confirmation hearings—senators and nominees—has an overriding interest in embracing the myth that judges’ own political principles are irrelevant. Sotomayor was, of course, well advised to embrace that myth. Her initial statement, and her constant repetition of it, made her confirmation absolutely certain; she could lose the great prize only by a candor she had no reason to display. She was faced by a group of Republican senators who had no interest in exploring genuine constitutional issues but wanted only to score political points, if possible by embarrassing her but in any case to preen before their constituents. They scoured her record of extrajudicial speeches for any sign that she actually doubts the myth so they could declare her a hypocrite who is not faithful to the law after all.

Democratic senators had no wish to challenge the myth either. They only wanted to protect her from questions that might supply ammunition to her opponents, so they offered her endless opportunities to repeat her empty promise to follow the law. Only President Obama, in a remarkably candid statement, seemed to challenge the myth. The law, he said, decides 95 percent of the cases but that leaves 5 percent to be decided in the judge’s “heart.” Senator Jon Kyl of Arizona asked Sotomayor if she agreed with Obama on this point. No, she roundly declared, I do not.

So the minuet was choreographed, and any illumination ruled out, before the hearings began. Both supporting and opposition senators asked Sotomayor whether she approved of recent Supreme Court decisions they believe of particular concern to their constituents: about abortion, of course, but also gun control, the president’s power to defy Congress, his power to detain suspected terrorists indefinitely, and the permissibility of a city taking private property for private development. They wanted to be seen as knowledgeable and concerned by what worried voters.

She refused to answer, as they knew she would, on the ground that these issues might come before the Court again, and she would therefore violate judicial ethics if she took a position. As she asked Senator Tom Coburn of Oklahoma: “Would you want a judge or a nominee who…said I agree with you, this is unconstitutional—before I had a case before me…?” Opposition senators told journalists, predictably, that they were irritated with her evasions; supporting senators praised her for wise judicial restraint.