Page last updated at 21:07 GMT, Thursday, 16 July 2009 22:07 UK

Why judge drama failed to ignite

Sonia Sotomayor gives testimony to the US Senate Judiciary Committee during her confirmation hearing, 16 July, 2009

By Kevin Connolly
BBC News, Washington

This is the story of what happened when Barack Obama's first nominee for the Supreme Court appeared before the judiciary committee of the United States Senate, but first an apology.

You may have formed the impression from the media last week that we were poised for an extraordinary piece of political theatre in which Sonia Sotomayor would pit her wits against a succession of star Senators and that the sunlight of democracy would flood into the very recesses of her soul. Sorry.

Rarely can a squib have been damper, a confrontation less confrontational or a piece of political theatre less theatrical.

The full panoply of instant punditry, live blogging and gavel-to-gavel TV coverage was duly brought to bear on the hearings, of course.


One cable news station prepared a teaser advertisement for its coverage which asked: "What Surprises Will be Revealed?"

Well now we know. The answer was none. Not a single one.

The real question is why anyone ever thought the hearings might provide any drama or tension.

Judge Sotomayor is, after all, the nominee of a Democratic president and the Democrats have comfortable majorities both in the Senate as a whole and therefore on the Judiciary Committee that has been conducting these hearings.

There was never any serious doubt that, politically, she was something of a shoo-in.

And separately from that, in the course of the last two decades a kind of precedent has been emerging in which judges nominated to the Supreme Court are allowed to avoid engaging with any questioning at their confirmation hearings that touches on the hot-button issues in American politics like abortion or gun control.

If you were applying for a job as an airline pilot the people interviewing you would probably be a little taken aback if you declined to answer questions about the best way to fly a plane

The convention is relatively recent - and goes back only to the confirmation hearings of Ruth Bader Ginsburg nominated to the Supreme Court by Bill Clinton in 1993.

She famously vowed to provide "no hints, no forecasts and no previews" of the sorts of verdicts she might return if she were to be confirmed (she was).

And in her opening statement to the senators, she made it pretty clear that she would not be engaging with them on anything that actually mattered, with the words: "It would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called on to decide."

Lawyers and judges love precedents, of course, so subsequent nominees (including the current Chief Justice, John Roberts, a Bush nominee in 2005) have generally taken the same view, thus robbing the process of any drama or serious content.

Justice Roberts was smooth and polished in his hearings, but like many things which are smooth and polished he was also rather slippery and elusive.


It is curious that the Ginsburg Rule has been so tamely accepted by senators, since it makes a nonsense of the idea that they are there to provide a final level of scrutiny for jurists who are about to be placed in a position where they can shape life in America for many years to come. (Justices on the Supreme Court are appointed for life.)

The rule is based on a rather odd proposition, after all.

If you were applying for a job as an airline pilot the people interviewing you would probably be a little taken aback if you declined to answer questions about the best way to fly a plane on the grounds that the information would be relevant to your daily work.

Given that the Senators probably assumed that Judge Sotomayor would not engage with them on abortion or gun control in any depth, you can see why they kept returning over and over again to her most controversial and best-known public pronouncement.

This - in case you have not seen the news from America in the last week - was a line that used to crop up in her speeches to the effect that because of the richness of her life experiences, a wise Latina would more often than not make better judgements than a white man.

To those of us who are not lawyers, the meaning of that statement seems pretty unambiguous whether you agree with the sentiment or not.

Anita Hill gives testimony before the US Senate Judiciary Committee in a confirmation hearing for Clarence Thomas
Anita Hill electrified the Clarence Thomas confirmation hearings

But Mrs Sotomayor IS a lawyer, of course, and was able to argue that those words also sustain an interpretation other than their ordinary natural meaning and that she was merely trying to inspire law students from minority backgrounds and in doing so had reached for a rhetorical flourish that failed.

Asked about it repeatedly, she merely said that she did not hold the view that those words would appear to imply that she does hold - and the senators, however hard they tried, were not able to lay a glove on her.

Frustratingly, such proceedings were not always so anodyne.

The confirmation hearings for Clarence Thomas (nominated by George Bush Sr in 1991) produced some of the most grotesque and compelling political theatre seen in Washington for years when a former colleague of his emerged to testify that he had sexually harassed her when they worked together. (Justice Thomas denied it).

Those hearings really were full of surprises - including claims that the judge engaged in graphic sexual conversations - but no other confirmation process since has matched it for drama.


And not everyone has declined to discuss their views with the judiciary.

Ronald Reagan's nominee Robert Bork talked legal philosophy with the senators - and even criticised the legal underpinning of Roe v Wade, the case which enshrines the right to abortion - and his reward, predictably, was to have his candidacy for the Supreme Court rejected.

It should be pointed out, though, that Mr Bork's failure was not entirely down to the proceedings of the judiciary committee.

He was something of a hate figure on the left of American politics - Ted Kennedy accused him of wanting to create an America in which women would be forced into back-alley abortions and blacks would be forced to eat at segregated lunch counters - and a successful campaign was mounted to create an atmosphere in which his nomination would not be confirmed.

It is probably not much consolation for him, but one side effect of this was that his name entered the language as a verb.

To "bork" is to render impossible someone's appointment to public office.

Ms Sotomayor will not end up sharing Robert Bork's fate in either sense.

Even conservative Senators like John Cornyn and Lindsey Graham - who seemed uncomfortable with Judge Sotomayor's "wise Latina" speeches - acknowledged that her record as a judge was mainstream rather than radical.

She has been controlled, measured and articulate as well as reserved and there have been plenty of hints from Republicans that they will not try to block her progress (a few of them might even vote for her).

So this process never produced the dramas we were promised or the intellectual clashes that the cable channels so looked forward to.

But it will produce a new Supreme Court Justice - and it will do so in such a smooth manner that there is very little chance that the word "Sotomayor" will ever evolve into a verb.

And that is just how the judge would want it.

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