President Reagan was a good politician and a great communicator because he was first an actor. He knew how to play the roles assigned to him. The more I observe politicians the more I realize they are all actors and actresses. They play the roles and read the scripts assigned to them by their producers (or handlers). Like actors and actresses, politicians have some discretion over the producers for whom they are willing to work and over the roles they agree to play. After accepting an assignment, however, the acting begins in earnest.
The most recent example of political theatre occurred last week during the confirmation hearings held by the Senate Judiciary Committee in connection with President Obama’s nomination of Judge Sonia Sotomayer to the U.S. Supreme Court. Everyone involved in the hearings, including Judge Sotomayer, was acting. Everyone was delivering a script in the same way an actor or actress delivers a script in a movie or play.
For me, watching the confirmation hearings was like watching a bad movie or play that I had already seen several times. The only difference was that the actors had changed roles. The Democrats assumed the role of praising and defending the President’s nominee, which was the role played by the Republicans during the confirmation hearings for Supreme Court Justices John Roberts and Samuel Alito, both of whom were appointed by President George W. Bush. Likewise, the Republicans assumed the role of challenging the judicial philosophy of the President’s nominee, the same role played by the Democrats during the confirmation hearings for Justices Roberts and Alito. All the politicians had to do was exchange scripts in the same way new scripts are assigned to actors and actresses when they play new roles in different movies or plays.
During the confirmation hearings, many Democratic Senators heaped praise upon Judge Sotomayer because of her inspiring life story. She is a Hispanic woman who grew up in a poor family living in a public housing project in the Bronx borough of New York. Despite the disadvantages she faced as a child, Judge Sotomayer defied the odds and somehow managed to graduate from both Princeton University and Yale Law School, to pass the New York bar examination, to earn a position on the federal district court in New York, and to be appointed to the U.S. Court of Appeals for the Second Circuit. Many of the same Democrats who praised Judge Sotomayer for her compelling life story, however, were playing a different role when another Hispanic with an equally compelling life story was nominated by President George W. Bush to serve on the U.S. Court of Appeals for the District of Columbia Circuit. Do you remember the name Miguel Estrada? He immigrated to the United States from Honduras when he was 17 and defied the odds by graduating magna cum laude from both Columbia University and Harvard Law School. When President Bush nominated Mr. Estrada for a seat on the U.S. Court of Appeals, the Democrats had a different role to play in the political theatre. Instead of praising Mr. Estrada for his qualifications and accomplishments, they used a filibuster to keep his nomination from receiving an “up or down” vote in the U.S. Senate. In both cases, the Democrats were playing the roles and reading the scripts assigned to them. Of course, the Republicans were doing the same thing.
The politicians were not the only ones acting at Judge Sotomayer’s confirmation hearings. Judge Sotomayer was also acting. She simply studied and regurgitated the scripts used by Justices Roberts and Alito during their confirmation hearings. It made no difference to Judge Sotomayer that her judicial philosophy is probably quite different from the judicial philosophies of Justices Roberts and Alito. She used their scripts because their scripts had worked for them and by doing so she was able to tell the Republicans what they wanted to hear. She did not need to appeal to the Democrats because they were going to vote for her regardless of what she said.
The most striking thing about the confirmation hearings was that Judge Sotomayer’s testimony about her judicial philosophy was totally inconsistent with her record and with her previous public statements. Here is a woman who once boasted that the courts are where policy is made. The same woman made it clear on several occasions that she sympathizes with various individuals or groups based on their ethnicity or gender and that she believes in the use of racial quotas and other racial preferences in order to achieve equal results among racial groups. Judge Sotomayer’s most famous and most controversial remark was that a “wise Latina woman” would make better decisions than a white male. Can you imagine what would happen if a white man said he would make better decisions than a Latina woman? You know as well as I do that a white man who made such a comment, regardless of the context in which it was made, would have no chance whatsoever of being confirmed for a seat on the Supreme Court or any other court for that matter.
Judge Sotomayer’s record makes it very clear she has a liberal philosophy, but you would never know it from her testimony. She followed almost to the letter the scripts used by Justices Roberts and Alito during their confirmation hearings. She said, “Judges can’t rely on what’s in their heart. … The job of a judge is to apply the law.” She added, “It’s not the heart that compels conclusions in cases, it’s the law.” As did Justices Roberts and Alito, she refused to answer questions on specific issues that might come before the Supreme Court, such as abortion rights, gun control, property rights, and affirmative action. By taking this approach, she followed the standard script for any nominee to a federal court.
What did the confirmation hearings accomplish? In my opinion, they didn’t accomplish much. We did not learn anything new or revealing about Judge Sotomayer’s true judicial philosophy or how she will vote on various issues as a member of the Supreme Court. Not surprisingly, we discovered that Judge Sotomayer could remain calm, cool, courteous, and friendly under pressure. We also discovered she could effectively deliver the script assigned to her by her producers (or handlers). She did not make any major mistakes that could threaten her nomination. That was her goal, and I believe she accomplished it.
What do others think about the confirmation hearings? Prior to the hearings, Professor Louis Michael Seidman, a law professor at Georgetown University, was a strong defender of some of the controversial comments made by Judge Sotomayer, including the “wise Latino woman” comment and the statement that judges make policy decisions. After the hearings, Professor Seidman, in an evaluation posted on the website for The Federalist Society, said, “The performance of both the Senators and the nominee has been disgraceful. If we are to give Judge Sotomayor the benefit of the doubt, she very substantially misrepresented her own views. It is virtually impossible to give the Senators the benefit of the doubt. Their questioning was at once frivolous, hectoring, and deeply ignorant.” On the same website, M. Edward Whelan III, President of the Ethics and Public Policy Center, wrote, “Judge Sotomayor deserves an A+ for brazen doublespeak. She emphatically rejected the lawless "empathy" standard for judging that President Obama used to select her, but she denied the plain import of her many statements contesting the possibility and desirability of judicial impartiality. She hid behind her empty clichés about judging, but she never recognized any meaningful bounds on the role of a Supreme Court justice. She gave a series of confused statements about the use of foreign law that are inconsistent with each other and that contradict a speech that she gave just three months ago.” Professor Matthew J. Franck, Professor and Chairman of the Political Science Department at Radford University, wrote that Judge Sotomayor either substantially misrepresented her own views or “is a very confused thinker if she thinks her testimony can be squared with her own past statements on repeated occasions over a 15-year period. I think it very likely that she was well-coached by White House handlers….”
The bottom line, of course, is that everyone was acting during the confirmation hearings, and everyone was reading the scripts and playing the roles assigned to them. The confirmation hearings represent an example of political theatre at its worst.
Who is the real Judge Sotomayer? Is she a woman who believes judges can make policy decisions and who approaches cases with a biased point of view based on the background and culture of the parties involved? Or is she an unbiased judge who gives all parties fair and equal treatment and who bases her decisions strictly on the language of the Constitution and the laws she is obligated to apply? Who is the real Judge Sotomayer? We will find out in due course, but I think I already know the answer.
Posts
