The Sotomayor Hearings: The Good, the Bad and the Ugly
	By VIKRAM DAVID AMAR
	Thursday, July 23, 2009

In this column, I offer some overall evaluation of the Senate hearings last week on President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court. Perhaps the hearings weren't entirely useless; they helped educate the American public about a few important things, such as Judge Sotomayor's temperament and the importance of judging a person's words in context. But the hearings missed many opportunities to educate the public about many other important things – in particular, the contours of the many constitutional controversies that Sotomayor and the other Justices will continue to take up in the coming decades. And worse still, the hearings affirmatively miseducated the American people about one overriding thing – whether federal judges should and do ever "make law" and policy.

The Hearings' Positive Aspects

First, the positives. One question going into the hearings was whether Judge Sotomayor's judicial demeanor was sufficiently patient and controlled. Over the course of days of repetitive and sometimes pointed (if not accusatory) questioning by Senators, Judge Sotomayor was nothing if not patient and controlled. She was invariably deliberate and careful in the words she used, and she never once came close to losing her cool.

This was, of course, for her a job interview of sorts, and so a critic might worry that once she is confirmed on the high Court, she will revert to a more caustic and less respectful demeanor, at least as to the advocates who appear before her. But I rather doubt it. From now on, she will be on a much bigger stage than she has ever occupied before, and I think there will always be for her an incentive to be patient and careful in her public persona, including her questions and comments from the bench.

Another positive of last week's hearings was the way in which many of Judge Sotomayor's best responses – to questions about particular past cases she has decided and past speeches she has given – reminded Senators and observers that a person's words must always be looked at in context. If you want to know who someone is, you have to look not just at a particular sentence (even one uttered more than once), but also the entire paragraphs or documents in which the sentence occurs. Indeed, to be reasonable, you must look at the sentence or sentences in the context of an entire body of work spanning decades.

And context was key in winning over many Republican votes. The biggest reason Judge Sotomayor's comment about the judgment of a wise Latina being "better" than that of someone else didn't sink her was not that her defense of those words themselves was particularly strong; rather, it was that in her entire judicial career of a decade and a half, nobody could come up with many plausible instances in which even an argument could be made that she had put her personal sympathies above traditional legal analysis. For a sitting judge, especially one with a long career like Sotomayor's, case rulings speak louder than academic speeches.

The Hearings' Shortcomings

Now, the hearings' shortcomings. Perhaps most vexingly, Judge Sotomayor (like other nominees before her) was able to avoid talking meaningfully about her current views on most of the major constitutional questions of the day. When asked to weigh in on particular areas of law in which the Court has spoken, she responded by saying either that the question would be too abstract to yield a meaningful answer, or that it would be too specific for her to be able to answer and yet still be open-minded when the issue comes before her on the Court.

As I've written before at length, this response is unconvincing. I wish any Senator had directly challenged this response by asking her: "Then why can sitting Justices, who've obviously shared their current thinking in the course of authoring majority opinions, concurrences and dissents, continue to hear cases involving the same recurring issues?"

Don't get me wrong: I fully understand why Judge Sotomayor did what is in her best interests (and what I would advise her to do, were I in her inner circle): to say as little of substance as possible. And Senators, too, may have done what's in their best interests – coming off as Senatorial on TV and not boring the American people with meaningful discussion of constitutional doctrine. But as I've argued before, what is in the interests of the nominee and the Senators may not be in the best interests of the American public, and the only way to truly get a sense of the kind of Justice someone will be is to ask questions regarding her views of past controversial (often divided) cases from the Court itself. If we're not going to find out much about what kind of Justice a person will be, what's the point of the hearings themselves?

The Hearings' Worst Flaw: Suggesting Judges Never Are Required to Make Law, Only to Apply It

Indeed, the hearings may have been worse than simply an educational opportunity lost. In one important respect, they may have affirmatively misinformed the American people. I speak here of the dominant theme of Judge Sotomayor's testimony – from her opening statement, right through to the end – the theme that "[t]he task of a [federal] judge is not to make law. It is to apply the law."

However nice this sounds, it simply isn't true. As my friend (and fellow LATimes blogger on the hearings) Erwin Chemerinsky put it, "Every first year law student knows that judges make law." State court judges make new law in the areas of contract, tort and property law, among others. And the Supreme Court fashions law in virtually all of its rulings.

To see this clearly, consider two of the most contentious decisions from last Term – the New Haven firefighters case (featured so prominently in the Sotomayor hearings), and the challenge to the federal Voting Rights Act. In both cases, the Court read a landmark federal statute in a particular way, likely influenced by the Court's plausible --but by no means necessarily correct -- understanding of the Amendments to the United States Constitution adopted after the Civil War. In neither case could one argue with a straight face that the majority's reading of the law was undeniably compelled by the text of the statute or the words and history of the Constitution. Both cases were classic judgment calls, in which the judgment of conservative jurists carried the day.

My point here is not that the Court was wrong in the way it resolved these cases (although I do have my doubts); my point is simply that their resolution broke new legal ground and "made" – in every meaningful sense – new law and policy.

Why is it bad to deny that judges make law? Even if the idea that judges don't make law is untrue, can it be characterized as a "white lie" that makes us all feel better about government? I don't think so, because denying that judges make law derails us from educating folks about what we should be discussing: the ways in which legitimate judge-made policy differs from the kinds of policy decisions elected legislators and Presidents fashion.

Federal judicial policymaking, when done right, is, among other things, interstitial (that is, it is accomplished with the boundaries of statutory and constitutional parameters). It is also incremental (attendant to the size and speed of trends and currents in American law, history, economics and sociology). It is entirely transparent and explained in a published format that responds thoroughly to arguments on the other side. Finally, it is not particularly concerned with the next electoral cycle (even as it is properly aware of longer-term American attitudes and is responsive to whether, a generation after a ruling, its leadership has been followed or rejected.) These and other features distinguish judicial lawmaking from the more freewheeling and sometimes populist actions of the elected branches.

Ironically, by misleadingly suggesting that judges do not and ought not to make policy (and also by suggesting that nominees can't talk about specific past cases), and by saying these things because of concerns about the immediate perceptions of voters in the next election, recent Supreme Court confirmation hearings might undermine, rather than support, the idea that judges can be, and are in fact, different from other politicians.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.