Fustrations

Not that there was much at stake, but the Democrats apparently won the Sotomayor confirmation hearings.

The GOP effort felt lacking sufficient discipline or strategy. To my slanted ears, the sharpest questions came from Senator Hatch in the guise of "questions from constituents". The questions fashioned by the Senators and their crack staffs underwhelmed.

The nominee did present an inviting target. She was awkwardly over-rehearsed. Many of her answers brought to mind the Bing commercial as she offered repeated scripted responses to keywords whether or not they fit the question. In my petty heart I wish that a GOP Senator had called her on her cartoonish slow-talking. I think the politics would have supported making an issue of her -- I am pretty sure -- unprecendented, for a Supreme Court nominee, number of answers hid behind "I don't know" and "I can't recall" and "That wasn't my area of expertise". What does well qualified mean in the face of that sort of demonstrated (or was it put-on?) ignorance?

In as much as Sotomayor chose to play the role of Judicial conservative, Republicans may have been well advised to prod her less, and use her to poke Democrats more. Sen Kyl prompting Sotomayor's dismissal of the President's judicial philosophy was a coup. I wish they had pulled off a like moment more explicitly exposing the Democrats Sunstein-derived identification of Judicial Review as Judicial Activism.

The one exchange that really let me down, was following Sen Coburn asking the sensible question "How did we get to the point where something that's spelled out in our Constitution and guaranteed to us ['is not settled law and settled fixed'], but something that isn't spelled out specifically in our Constitution is?", Sotomayor answered:

One of the frustrations with judges and their decisions by citizens is that... what we do is different than the conversation that the public has about what it wants the law to do.

We don't, judges, make law. What we do is, we get a particular set of facts presented to us. We look at what those facts are... and then look at the Constitution, and see what it says, and attempt to take its words and its -- the principles and the precedents that have described those principles, and apply them to the facts before you.

Coburn, dropping the ball, responded, simply, "Thank you." A smarter, or at least more you-tube-worthy, response would have forcefully articulated that the Constitution belongs to the American people, not a narrow class of elite judges and that a gap between how the American people understand their Constitution and how judges interpret it, reflects not -- as Sotomayor would have it -- ignorance on the part of the people, but arrogance on the part of judges.

Or, failing that, he could have at least pushed her to back away a little from her assertion that precedent innocently describes constitutional "principles" towards acknowledging the plain reality that the way we got to this point was that some Judges simply made law which is now sanctified as precedent. And judges who rule based on such precedent are, if not making law themselves, blessing the principle of Judicially fabricated law.

In related news, the President subtly re-iterated his desire to hide behind the Supreme Court's skirt on gay marriage.