Why Sotomayor Failed to Defend the Progressive Vision of Judging

Short-term incentives and the triumph of conservative rhetoric

Just before Sonia Sotomayor’s Supreme Court confirmation hearing began, Democrats acquired their 60th seat in the Senate. Sotomayor’s path to confirmation couldn’t have been easier.

Why did Sotomayor fail to use her hearing to provide a robust defense of progressive judicial ideas? Why did she instead appall progressives by setting forth a ridiculously wooden description of the judicial role?

The answers provide some broader lessons about Supreme Court confirmation battles.

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There is an enormous temporal mismatch between the political costs and benefits that a White House perceives a Supreme Court nomination to have, on the one hand, and the value that a Supreme Court appointee has for a president’s political base over the long term, on the other.

The president doesn’t benefit politically from how a justice he appointed performs after the president leaves office. He wants the confirmation process itself to deliver political dividends.

Every White House is replete with staffers who reinforce the president’s bias toward short-term political calculations. That bias affects the president’s selection of a Supreme Court nominee. It also plays out in how the nomination battle is waged. White House and Department of Justice staffers have an incentive to dodge controversy. They are generally focused on getting the nominee confirmed as quietly as possible, not in having the nominee engage in a prominent public debate over judicial philosophy.

The nominee has the same short-term incentives to avoid even remote risks to being defeated. That perspective is reinforced by the many hours that the nominee spends with White House and DOJ staffers preparing for meetings with senators and doing practice sessions for the confirmation hearing.

Consider a few illustrations of this phenomenon:

1. When Ruth Bader Ginsburg showed up for her confirmation hearing in 1993, she had every reason to know that she would be confirmed. My boss Senator Orrin Hatch, the lead Republican on the Judiciary Committee, had literally hugged Ginsburg at the White House ceremony at which Bill Clinton announced her nomination. No significant controversy had arisen in the five intervening weeks. Democrats had a 56-44 margin in the Senate, and lots of Republicans were already on board.

Ginsburg could have fully answered every question posed to her. Instead, in her opening statement she declared that her testimony could offer “no forecasts, no hints” on how she “would cast [her] vote on questions the Supreme Court may be called on to decide.” On that basis, she declined to answer many questions about specific cases and issues.

Ginsburg’s approach, which has come to be known as the Ginsburg Rule, has been a great gift to subsequent nominees. That gift has been especially valuable to nominees of Republican presidents, who benefit from the shelter it provides from a generally hostile press.

2. When George W. Bush nominated John Roberts in 2005, news articles widely reported that Roberts had been a member of the Federalist Society. Roberts’s confirmation team raced to contest these reports:

[T]he day after Bush announced Roberts’s nomination, the officials working on the nomination asked the White House press office to call each news organization that had reported Roberts’s membership to tell them that he did not recall being a member.

As I’ve recounted, a Washington Post reporter told me that she and her colleagues were laughing at how eager the White House was to distance Roberts from the Federalist Society. Why should his involvement with it be controversial? But the White House press office found it more convenient to try to run to the middle than to defend conservative judicial principles.

3. A large factor in Bush’s shocking nomination of Harriet Miers in 2005 was, ironically, the supposed ease of getting her confirmed. Karl Rove states in his memoir that “Senate Democratic leader Harry Reid told Bush he would support Miers and felt other Democrats would as well.” Never mind that the Senate had 55 Republicans and had just confirmed Roberts by a margin of 78 to 22. The White House didn’t want a fight.

Consider also a converse illustration: With the benefit of twenty years of hindsight, many conservatives sensibly hail Bush’s subsequent appointment of Samuel Alito as perhaps his greatest act as president. Conservatives celebrated Alito’s appointment at the time, but no one could have clearly foreseen how monumentally important it would prove to be. So whatever credit Bush received at the time was comparatively modest.

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One big reason why Sotomayor would be dissuaded from trying to make a vigorous case for progressive judicial concepts like “living constitutionalism” is that over the preceding fifteen years or so Republicans had been winning the public political battle over judicial philosophy.

You don’t have to take my word for it. That’s how liberal law professors saw things. In this interesting summary five days after the Senate confirmed Sotomayor’s nomination, one professor observed (in the blogger’s paraphrase) that conservatives

have done a much better job of articulating a jurisprudential philosophy than have liberals over the last generation, and the philosophy they have articulated--some version of judicial restraint plus originalism plus formalism--fits the lay public's view of judging. By contrast, the notion of a “living Constitution” is held up as a code word for judges imposing their preferences on society.

Another law professor’s complaint that conservatives have “oversimplifying and misleading slogans” (again, a paraphrase) was itself a testament to the effectiveness of conservative rhetoric. And a third law professor (the blogger himself) agreed that “conservative dogma has broader public appeal” and urged liberals “to come up with a set of slogans that captures the core of the philosophy and resonates with the public.”

Sotomayor’s own nomination was framed by Barack Obama’s much-mocked “empathy” standard for selecting Supreme Court justices. Obama sought justices who would indulge their own “deepest values” and “core concerns” in determining the meaning of constitutional provisions and federal laws. Sotomayor’s controversial “wise Latina” comment signaled that she satisfied Obama’s standard, and her scandalous mishandling of the race-discrimination claims brought by New Haven firefighters showed that the ugly flip side of empathy for some litigants is antipathy to other litigants.

Sotomayor and her advisers didn’t want to give her opponents any more ammunition, and they didn’t want to raise the political costs of getting her confirmed. That would amply explain why she repudiated Obama’s empathy standard, why she resisted Democratic senators’ invitations to criticize the umpire simile that John Roberts had used to convey the judicial duty of impartiality, and why she absurdly described her “philosophy of judging” as nothing more than “applying the law to the facts at hand.”