Michael Kessler is executive director of the Berkley Center for Religion, Peace, and World Affairs at Georgetown University, an associate professor of the practice of moral and political theory in the Department of Government, and an adjunct professor of law at Georgetown Law. Kessler’s research and writing focus on theology, philosophical and religious ethics, and social, political, and legal theory. He is interested in problems of law and religion, both globally and in the U.S. constitutional context. Kessler is the author of several edited volumes, including The Oxford Handbook of Political Theology, co-edited with Shaun Casey (Oxford University Press, forthcoming); Political Theology for a Plural Age (Oxford University Press, 2013); and Mystics: Presence and Aporia, co-edited with Christian Sheppard (University of Chicago Press, 2003). He also wrote “Engaging Religion in U.S. Foreign Affairs,” a chapter in the Companion to Religion and Politics in the United States (Wiley-Blackwell, 2016). Kessler is a member of the Working Group on Displaced Persons and Hospitality to the Stranger, part of the Culture of Encounter Project.
The confirmation hearings of Judge Sonia Sotomayor have so far reminded me of God's admonition in I Samuel that no one can see into the heart of humans but God.
The story goes that God sent Samuel to Bethlehem to look among the sons of Jesse for the newly-anointed King of Israel and Samuel understandably looked for the son who appeared most strong and formidable. When it is revealed that the youngest (and "ruddy") David is the chosen one, God tells Samuel: "Do not look on his appearance or on the height of his stature, because I have rejected him; for the LORD sees not as man sees; man looks on the outward appearance, but the LORD looks on the heart."
So what is in the heart of Judge Sotomayor? One thing is for sure: we aren't going to find out from these hearings. It's not clear Sotomayor is even revealing her hand to God.
Why this is so goes back to at least the contentious battle in 1987 over Robert H. Bork's nomination. Since then, the story goes, the process has become nothing more than a show. No nominee wants to be "Borked" again, so they are counseled to evade all substantive answers to questions about how they would decide a case--real or hypothetical. (Benjamin Wittes of the Washington Post (and author of Confirmation Wars: Preserving Independent Courts in Angry Times) suggests it goes back further: "Since live testimony by nominees became standard after the Supreme Court's 1954 decision striking down segregated public schools, senators have sought to pressure nominees into swearing allegiance to contested ideas, or to make statements that provide ground for opposition").
During Sotomayor's nomination so far, we have only learned a few things, and these are my highlights: The hearings are incredibly, painfully boring. Senators from both sides of the aisle struggle to make sense of even basic legal issues and often end up sounding like pandering fools. The hearings themselves amount to a game of cat and mouse--like a Tom and Jerry cartoon--where each character faithfully plays their role and, despite the explosions and traps laid for the other, no one gets hurt in the end. Not a single person's mind will be changed by these proceedings.
Tom Coburn (R-OK) bluntly stated what he wanted her to reveal: "What the American people want to see is inside and what your gut says." For once, I totally agreed with something he said.
Yet the exchanges have been predictably vague--almost laughably so. Consider this typical exchange with Senator Coburn, over abortion:
Coburn: You've been asked a lot of questions about abortion. And you've said that Roe v. Wade is settled law. Where are we today? What is the settled law in America about abortion? Sotomayor: I can speak to what the court has set in its precedent. In Planned Parenthood v. Casey, the court reaffirmed the core holding of Roe v. Wade that a woman has a constitutional right to terminate her pregnancy in certain circumstances. In Casey, the court announced that, in reviewing state regulations that may apply to that right that the court considers whether that regulation has an undue burden on the woman's constitutional right. That is my understanding of what the state of the law is. Coburn: Well, let me give you a couple of cases. Let's say I'm 38 weeks pregnant and we discover a small spina bifida sack on the lower sacrum, the lower part of the back on my baby. And I feel like I just can't handle a child with that. Would it be legal in this country to terminate that child's life? Sotomayor: I can't answer that question in the abstract because I would have to look at what the state of the state's law was on that question and what the state said with respect to that issue... Coburn: OK. Well, does technology in terms of the advancement of technology, should it have any varying whatsoever on the way we look at Roe v. Wade? For example, published reports most recently, of the 21-week -- 21-week -- that's 142 days fetus alive and well now at nine months of age with no apparent complications because the technology has advanced so far that we can now save children who are born prematurely at that level. Should that have any bearing as we look at the law? Sotomayor: The law has answered a different question. It's talked about the constitutional right of women... Coburn: I understand. Sotomayor: ... in certain circumstances. And as I indicated, the issue becomes one of, what's the state regulation in any particular circumstance? Coburn: I understand. But all I'm asking is, should it have any bearing? Sotomayor: I can't answer that in the abstract, because the question, as it would come before me, wouldn't be in the way that you form it as a -- as a citizen. It would come to me as a judge in the context of some action that someone's taking, whether if it's the state, the state, if it's a private citizen being controlled by the state challenging that action. ...All I can say to you is what the court's done. And the standard that the court has applied -- what factors it may or may not look at within a particular factual situation -- can't be predicted in a way to say, yes, absolutely, that's going to be considered, no, this won't be considered."
To sum up the structure of this "hearing": the Senator asks for how the nominee might rule "beyond the law," that is, at the point where the law is vague or under-determinate, and the nominee reverts back to stating the precedent that the Court has already determined. Not very clarifying for what she'd do when she is creating precedent, not following it.
Such fidelity to precedent would be great if Judge Sotomayor was auditioning to be a trial or appellate judge. And let it be clear that on this question her considerable record of cases suggest that she is precisely the kind of justice that Republicans claim they want, displaying a principled, almost mechanical, obedience to applying "the law" to facts.
Yet to play along in her pre-determined role, Judge Sotomayor clarified her "wise Latina" remarks and distanced herself from the President's call for "empathy" (in the rare 5% of cases that are not clear-cut) with a perplexing view of judicial decisionmaking at the Supreme Court level. In response to prodding by John Kyl (R-AZ), Judge Sotomayor said: "I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge."
This led Louis Michael Seidman, Professor of law at Georgetown and a cofounder of the Critical Legal Studies movement (that is, a person who would presumably be sympathetic to recognizing the role that empathy plays in judicial decision-making), to sound off on her dismissal of empathy: "I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate--that the legal material frequently...must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments."
Frustration indeed. While the Republican Senators are attacking the "empathy" issue, it is also abundantly clear that they are asking her simply to declare what resources she would use to decide cases that are precisely not mere applications of law to facts. They just want her to declare that she believes that a right of privacy can be seen as a fundamental right in various places in the Constitution and therefore protected. State your principles and ideas, they seem to plead (and then we can really vote against you for those views). Frankly, I would like to hear her views on many of these issues, too, as well as the principles she will bring to the Court. Then we could have something substantive to debate about whether or not she should be confirmed.
But the process as it exists will not give us any information about what's in Judge Sotomayor's heart and head, and how she will decide cases when the law is unclear and she's in the role of setting and not merely following precedent. We'll only know for sure when we see her role in the opinions that are released during the Court's coming terms.