The judiciary committee’s vote to endorse Sonia Sotomayor is not surprising. None of the Democrats are from red states and so have little to fear from voters, while the quixotic Lindsey Graham—in what can only be described as a triumph of hope over experience—was the only Republican to have set aside legitimate qualms and voted for the “wise Latina.” But voting on a Supreme Court nomination is more than a matter of deciding whether a nominee is “qualified”—even if Sonia Sotomayor had been a leading light of the judiciary rather than just the best available Hispanic woman—or deferring to the president. Instead, Senator Dick Durbin had it right when he said during John Roberts’s confirmation hearings that “no one has a right to sit on the Supreme Court” and that the “burden of proof for a Supreme Court justice is on the nominee.”
Given Sotomayor’s repeated rejection of the idea that law is or should be objective or discernible from written text, her inability in oral and written testimony to even state a position on important cases and legal doctrine beyond an acceptance of precedent—by which she would no longer be bound in her new role—leaves me with an abiding concern about the damage she could do to the rule of law in this country. I am similarly hard-pressed to accept hearing-seat conversions that contradict over 15 years of speeches and articles: most notably on the idea that judges’ ethnic backgrounds—and even “physiological differences”—should affect their rulings and on using foreign law to inform constitutional interpretation. Because of her evasion, obfuscation, and doubletalk, I like Sotomayor less now than when she was first nominated.
And so, in following the “burden of proof” paradigm and also respecting the logic of Senator Arlen Specter, who curiously evoked Scottish law at President Clinton’s impeachment trial to vote “not proven,” I would vote that the case for confirming Sonia Sotomayor to the Supreme Court is “not proven”—under American law.