The boringly choreographed Senate hearings!

Of course, I know nothing about the law. But, as a citizen commentator, I did not particularly care for the celebrated John Roberts line that his job was to play plate-umpire and call balls and strikes. I did not care for it because the supreme court is a place where the definition of the strike zone itself if defined. To carry the metaphor more, well, they can also call a balk. Ok, enough with that baseball stuff. My point is that the Supremes figure out what the law can be, or cannot be, and it is not reducible to a simplistic balls/strikes analogy.

But, Roberts set up the formula for relatively easy confirmation hearings. And Alito followed that same strategy. And so did Sotomayor. This sucks! I am so glad that a legal expert like Ronald Dworkin can explain so well why it sucks:

[Sotomayor] repeated at every opportunity throughout the hearings, that her constitutional philosophy is very simple: fidelity to the law. That empty statement perpetuated the silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution without making controversial judgments of political morality in the light of his or her own political principles. Fidelity to law, as such, cannot be a constitutional philosophy because a judge needs a constitutional philosophy to decide what the law is.

Thanks, Professor Dworkin.

And Dworkin also points out how tweedledum and tweedledee, er, Republicans and Democrats alike play this game:

Sadly, practically everyone concerned in judicial confirmation hearings—senators and nominees—has an overriding interest in embracing the myth that judges' own political principles are irrelevant. Sotomayor was, of course, well advised to embrace that myth. Her initial statement, and her constant repetition of it, made her confirmation absolutely certain; she could lose the great prize only by a candor she had no reason to display. She was faced by a group of Republican senators who had no interest in exploring genuine constitutional issues but wanted only to score political points, if possible by embarrassing her but in any case to preen before their constituents. They scoured her record of extrajudicial speeches for any sign that she actually doubts the myth so they could declare her a hypocrite who is not faithful to the law after all.

Democratic senators had no wish to challenge the myth either. They only wanted to protect her from questions that might supply ammunition to her opponents, so they offered her endless opportunities to repeat her empty promise to follow the law. Only President Obama, in a remarkably candid statement, seemed to challenge the myth. The law, he said, decides 95 percent of the cases but that leaves 5 percent to be decided in the judge's "heart." Senator Jon Kyl of Arizona asked Sotomayor if she agreed with Obama on this point. No, she roundly declared, I do not.

So the minuet was choreographed, and any illumination ruled out, before the hearings began.

Dworkin's conclusion--recommendation--is far from optimistic:

What is to be done? Nothing, I fear, until the idea that judges' personal convictions can and should play no role in their decisions loosens its grip not just on politicians but on the public at large. Perhaps a brave senator, who declares that he will not vote for any candidate who does not respond to questions like those I described earlier, may begin that process. But the only realistic solution is longer-term. In a book recently reviewed in these pages I suggested that our politics would be improved if high school classes were encouraged to explore political issues in a much more sophisticated way than has been customary.^[14] An enlightened discussion of the Constitution and of constitutional adjudication would be an essential part of such courses.

A "brave senator"? Hmmm .... add to the list of political oxymorons!