In the old common law, there was a form of pleading called “confession and avoidance.” You admitted the facts the plaintiff alleged, and then asked the court for permission to explain them away with other (exculpatory) facts.
Judge Sonia Sotomayor, cautious and shrewd as expected, used that old tactic to good effect in what was supposed to be (but so far is not) a contentious day of her confirmation hearings. She took any tension out of the proceedings with that one move.
The essential (if only halfheartedly pressed) essence of the Republican attack on the 55-year-old New Yorker is that she is ruled by her personal ethnic biases, and that those biases led her to side, in the now infamous New Haven Ricci case, with black over white firefighters who were seeking promotion.
The first part of their two-part argument is that she had repeatedly, at college and law-school colloquia and other speeches, said that a “wise Latina” woman would, more often than not, reach a “better” decision than other judges would. Her explanation today was carefully rehearsed and, in the end, unanswerable. Yes, she confessed, she had made such statements repeatedly. But when she did so, she said, her aim was to inspire young people, women, and Hispanics to aim high in law and in life. And, she explained, she was making a rhetorical point (for the sake of argument) in answer to Justice Sandra Day O’Connor, who famously said that an old male and an old female judge would reach the same conclusion.
That rhetorical play in answer to O’Connor was a failure, she told Republican Sen. Jeff Sessions, who was doing a bad impression of a bloodhound. “My play fell flat,” she said. “It was bad.”
Having confessed that, she took care of the avoidance part: in her 17 years on the bench, she said, she had never let her personal history or views obscure or affect her allegiance to the law. “I do not believe any ethnic, religious, or gender group has an advantage in sound judgment.” And, she said, she had the track record on the federal bench to prove it. No one on the GOP side really, let alone vehemently, disagreed.
So it goes: pretty easily for the judge. The feeling in the Hart Building hearing room today is almost sleep-inducing, for the following reasons:
- The discipline, preparation, canniness, record, and intellect of the nominee.
- The ambivalence, even confusion, of her GOP interlocutors (with the exception of the canny Lindsey Graham).
- The nature of confirmation hearings, which have become a form of predictable puppet theater, especially since everyone knows in advance that Sotomayor has the votes.
Aside from her personal demeanor─calm, almost painfully explanatory─Sotomayor’s best weapon in the hearings has been her record as a judge. There just aren’t many cases that the GOP has been able to cite to make her sound like a wild-eyed “activist,” liberal or otherwise. So far, they have mentioned about 10 of her cases, out of hundreds.
Typical of her studied caution: her choice of a Supreme Court role model when asked to name whom she admired. Her pick was Justice Benjamin Cardozo. He rang every bell. He was a New Yorker with roots in Jewish Spain and Portugal (semi-Hispanic!). He served for many years on a federal appellate court (local, like her). He was nominated by a Republican, Herbert Hoover (she had first been picked for the bench by George H.W. Bush). Cardozo was known less for being a supporter of FDR’s New Deal (though he was) than for being a stickler about limiting the role of the courts and for respect for precedent and common law.
Republican senators, for their part, seem overmatched and not quite in the game. Sessions expressed doubts, but his jousting with Sotomayor over the nature of impartiality seemed more philosophical than urgent. The fact is, they both know that perfect objectivity is impossible in life and law.
Sotomayor was saying that it was better to admit the existence of personal biases, and then control them with that knowledge. Sessions was forced to argue that a judge must come to the bench with no biases whatsoever─an ironic position indeed for a son of the segregated Deep South.
Their disagreement really had more to do with their cultural backgrounds. She’s a New Yorker and a product of the confessional, therapeutic culture there; he’s from Alabama, where only country singers talk about their thought processes and emotions, and where your prejudices are better off unspoken.
The other GOP inquisitors so far have wandered off into tangents about gun control, the nature of precedent. and so on─and at every turn Sotomayor has patiently answered, or avoided answering, with tact and detailed knowledge of the case law.
On the Ricci case, her answer was bland and pretty irrefutable: she and her colleagues had applied the existing case law in the circuit. To have done otherwise would have made her─horrors!─an activist. The GOP had no real answer for that.
If the aim was to induce sleep, if not full acceptance, she was succeeding.
So far nothing has happened to shake the foregone conclusion. The simple fact is that the Democrats have the votes, and she may get a considerable amount of GOP support in the end.
From the earliest age, Sotomayor has done her homework diligently and very well. She did so again preparing for these hearings.
Confession is good for the soul─and for your chances of being confirmed.