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Why Do We Talk About Judges This Way?

Friday, June 05, 2009

Nobody in America believes the judicial confirmation system works. Not the senators who eat up precious questioning time with windy speeches about pet projects back home; not the interest groups who scour every sordid instant of a nominee's background for evidence that they are unfit for the bench; and not the American public, whose experiences of constitutional interpretation and judicial philosophy are reduced in a few days on C-SPAN to bumper-sticker claims and counter claims.

The first days of Sonia Sotomayor's nomination to the high court have been rather par for the course, by these measures. Senators have made speeches but said very little. The interest groups were orbiting around some alternate reality long before the nominee had even been named. And the American people found themselves forming opinions about Judge Sotomayor's judicial philosophy and constitutional fitness, based largely on whether her life story somehow resonated, and whether they felt good or bad about a single line from an eight page speech she gave in 2001.

Now I am not snob enough to suggest that everyone in America should hunker down with the hundreds of judicial opinions Sotomayor has authored, and read them all instead of Dan Brown at the pool. I'm not even enough of a snob to insist that everyone should read all eight pages of that speech she gave at UC Berkeley's law school in 2001, before forming an opinion on whether Sotomayor is in fact a racist, reverse racist, or super-mega-reverse racist. But I will lay claim to enough snobbery to say that none of us should be forming opinions about the judge's fitness to serve on the Supreme Court based on snippets, converted to sound-bytes, which are mashed into the talking points so often used to confirm the preexisting notions of the person who hears them.

This is no way to talk about judges, and it's no way to talk about justice.

It's not just that these simple-minded accusations of judicial "activism" or "minimalism" or "empathy" or "humility" have no meaning - legal, constitutional or otherwise. They are as empty of descriptive value as "Just Do It" and "Where's the Beef" and are as cunningly marketed and focus-group tested. But the names we call our judicial nominees have a way of sticking, and whether it's the unfounded claim that Clarence Thomas was unintelligent, that Ruth Bader Ginsburg was a radical liberal zealot, or that Judge Sotomayor is "not that intelligent" or a "bully," these accusations are rarely accurate, and virtually impossible to live down.

Moreover, anyone who thinks that the nominees themselves are not scarred for life by being tarred as racist, radical or unintelligent, hasn't been watching the nominees in the decades following their hearings. Clarence Thomas' recent autobiography, My Grandfathers Son, proves he is as offended today by his confirmation battle as he was 18 years ago. Samuel Alito is reportedly still angry at the Senate for his treatment at their hands. There are consequences to treating your future nominees like soap opera villains.

If I am correct that the current confirmation process is terribly damaging, emerging, as Prof Stephen L. Carter describes it in his book The Confirmation Mess as the "difference between arguing the merits of a proposed appointment and turning the public debate into the equivalent of a barroom brawl," is there anything at all to be done about changing the process into one of honesty and decency, rather than insult and outrage? Americans care deeply about the courts and they should. They have strong opinions about who should sit at the Supreme Court and that's proper, too. But how can we turn the confirmation process from a morass of what Prof. Carter dubs "Supreme Court gossip" into a meaningful public discussion about judges, justice and judging?

The first thing that would have to change would be the current unwritten convention that allows the nominee to avoid discussing any issue that has ever come before them, might come before them, or might in any way illuminate their constitutional views. This so called "Ginsburg rule" turns the proceedings from a substantive inquiry about one's constitutional thinking, into a version of American Idol - wherein you can dial in a vote based on looks and personality.

It would also help enormously if the members of the Senate Judiciary committee would either contract out their cross examination time to practiced cross-examiners, or - more realistically - ask questions designed to elicit meaningful information. The current confirmation process is awash in dreams of Perry Mason, senators desperately looking for a gotcha moment with which to embarrass the nominee. Those moments virtually never happen, but the quest for them wastes enormous quantities of time and public goodwill.

Finally, it would be helpful if all Americans would excise the most radical and silly claims about judges from their vocabularies, as they enter into the public conversation about the judiciary. From my experience, federal judges are rarely "racists" and they are rarely "bigots." They don't love child molesters, or hate small children, and I have yet to meet a single judge who believes that the Constitution is, on balance, not nearly as important as their own ideological views. If we were to get rid of the wild-eyed claims and accusations about the other side's efforts to do violence to the Constitution, and were we to replace them with efforts to understand, think and learn, about what the Constitution means and should mean in the 21st century, I guarantee the conversation would be far richer, far more productive, and even (I promise) vastly more interesting.

Dahlia Lithwick is a Senior Editor at www.slate.com.

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