The Senate confirmation hearings generated virtually no significant information about a nominee that would help the American people learn about the judicial philosophy of a future Supreme Court Justice. The explicit language and implicit interpretive norms embedded in that language set up enormous roadblocks for getting a sense of how nominees approach the Constitution and whether the nominees are committed to grand constitutional theories, specific conceptions of constitutional interpretive methodology, or the nature of the role of the courts in American constitutional jurisprudence. For example, each of the last three nominees indicated that they were committed to the “rule of law” without specifying in any detail what that means. Then Judge Roberts committed himself to the Supreme Court version of umpire Bill Klem by insisting the Chief Justice’s job was to call ball and strikes according to the rules of baseball, not altering those rules in any manner at all. Judge Sotomayor reassured us that she is committed to “fidelity to law” without explaining what that means either generally or in specific cases. And the senators, oh the senators! They kept throwing around such locutions as “judicial activism,” “interpreting (or applying) law, not making it,” “legislating from the bench,” “the law’s plain meaning,” and other forms of discourse that set up a wall between the Constitution and the public understanding of the document’s complexity and nuances. Of course, we understand the political reasons for doing this, especially after the disastrous Bork hearings when a genuine dialogue occurred, but that doesn’t excuse the perversion of a process that is essential for judicial accountability and the future of American constitutionalism.
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