The Sandra Day O'Connor court
Buried within the ideological debate that Toobin sets up, as Chris points out, in the first 100 pages or so of “The Nine,” are little tidbits that hint at the way confirmation hearings have changed. I imagine it was frustrating for anyone of any political stripe to pay too much attention to the confirmation hearings for Judge Sonia Sotomayor: it seemed senators just gave political speeches in the form of 10-minute questions and Sotomayor tried her best to pretend she has no opinions.
I was surprised to learn recently that the whole bit of theater — that the advise and consent role expanded to include public questioning of a nominee — was relatively new. An interesting point hinted at in the book about the hearings of Robert Bork is that the thorough rejection we now use his last name to describe was really something he was partly responsible for because he let his views be so clearly known. He actually sort of invented his views; he was one of the founding group of conservative thinkers known as the Federalists. The idea that Bork borked himself by being too willing to dig in against the senators is one I’ve heard before.
. . . Robert Bork’s nomination had been defeated because he expounded broadly about his well-established, and very conservative, judicial philosophy. Consequently, the conventional wisdom had become that nominees should avoid taking substantive stands on most legal issues.
Then, by Clarence Thomas, the conventional wisdom was ingrained.
In awkward, wooden answers, he gave the impression that he had no views, not simply that he was declining to express them. In one infamous exchange, he told Senator Patrick Leahy that he had never even discussed Roe V. Wade.
Of course, the Thomas confirmation hearings became famous for a different reason. Sotomayor wasn’t so extreme, but I guess we have both Bork and Thomas to thank for how boring Sotomayor’s hearings seemed.
The major theme to emerge so far, beside the central conflict of the conservative fight against Warren court precedent, is how Sandra Day O’Connor, with her aggressively centrist philosophy, really shaped the court more than Rehnquist did. This also is a pretty well-established idea. I’m not sure justices would ever admit it, but they must think about their legacy. It seems O’Connor’s legacy is a tenuous one. She clearly, and allegorically (she compares the Court to turtles holding lampposts up in the courtyard), posits herself and the court as the slow and steady movers, but it seems like the years of close decisions just left everything in a more delicate state, ready to move very, very fast one way or another at any given moment.
*What will Sandra do?
