Senate hearings examine more than nominee

By Allan Levin

For the AJC

The Senate's hearings on Judge Sonia Sotomayor's nomination to the Supreme Court are scheduled to begin today.

Originally, confirmation hearings were intended to help determine a nominee's fitness for judicial office.

Now, the hearings serve more to educate voters about their senators than to educate senators about the nominees.

The hearings spend little time on issues that matter to anyone but students of constitutional law and people at the extreme ends of the political spectrum.

Most of the questions that the nominees are asked deal with esoteric topics far removed from the daily lives of anyone outside the ivory tower or Washington's beltway.

Unless she comes down with a severe case of "foot in mouth" disease, everyone expects that Judge Sotomayor will become Justice Sotomayor before the first Monday in October.

If we know how the story ends, why pay any attention to the hearings? Three reasons:

1. The hearings will be a barometer of the major parties' relative political well-being. The first side that starts throwing mud is behind.

The term "Borked" has become a synonym for political character assassination. It was first used to describe the mauling Supreme Court nominee Robert Bork received from Senate Democrats when they realized that was their only chance to defeat a distinguished nominee of a popular president.

If Republican senators try to "Bork" Sotomayor, it signals not only that they realize they cannot defeat the nomination on its merits but that the party's judicial philosophy is intellectually bankrupt.

The GOP will need to reformulate what it means to be a judicial conservative in the 21st century.

2. Public opinion influences the court. The justices pretend that their decisions are based entirely on the law. History teaches us otherwise.

One of the Supreme Court's unwritten functions is to break congressional gridlock, especially the gridlock that results from failures of political will.

When the Supreme Court breaks legislative logjams, the results are often cases whose names become part of the national zeitgeist: Bush v. Gore, Brown v. Board of Education and Miranda v. Arizona.

The Supreme Court soon will have to decide cases that will affect the lives of every American.

How should we balance protection of our civil liberties against the need to defend ourselves against terrorists? How should we finance elections? Should the police be able to use GPS devices to track sex offenders? Should there be a limit on the damages plaintiffs may receive in civil cases?

Sotomayor's confirmation hearings are a chance to resume the national debate on these and other political issues. None of these questions has easy answers.

But you don't need a law degree to understand the subjects and have an informed opinion.

The wisdom to find the correct answer is not found only in the halls of Congress or in the chambers of Supreme Court justices or on newspaper editorial pages.

It is also found in neighborhood playgrounds, corner bars and around dining room tables. We owe it to ourselves to have these discussions so that the common consensus can percolate up to the branches of government.

3. Confirmation hearings are one of the few chances we have to get a candid glimpse of our elected representatives.

During the four or five days that confirmation hearings usually last, the spotlight shines very brightly on members of the Judiciary Committee.

As they take advantage of every opportunity to appear before cameras and microphones, senators let their public masks slip.

You don't have to be an expert in the pre-emption doctrine to tell when a senator is taking a cheap shot, making a campaign speech or engaging a nominee in a substantive discussion of a knotty problem.

Your common sense tells you which senators are doing their jobs to the best of their ability and which are playing at being a senator.

And when Election Day comes, you remember which was which and who was whom.

Members of the Senate Judiciary Committee often become presidential candidates. Let's not waste this opportunity to judge our senators on how they perform their duty of evaluating nominees to the highest court.

Election Day is closer than you think.

Allan Levin is a member of the international law firm of Cozen O'Connor and practices in the firm's Atlanta office.