"Unless you have a complete meltdown, you're going to get confirmed," Senator Lindsey Graham said during the opening hours of the Sotomayor confirmation hearings. "I don't think you will." True enough, but confirmation hearings can reveal far more about the judicial philosophy of nominees than conventional wisdom suggests. In their hearings, David Souter revealed himself as a common law traditionalist, Ruth Bader Ginsburg as a minimalist, Stephen Breyer as a pragmatist, and John Roberts as someone who cared more about precedent and unanimity than Antonin Scalia and Clarence Thomas. Unfortunately, at the beginning of the Sotomayor hearing this morning, Republicans and Democratic senators framed the debate about Sotomayor's judicial philosophy in a caricatured way that seems unlikely to reveal the nuances of the kind of justice she will become: Republicans painted her as someone driven entirely by empathy and personal experiences and Democrats as a cautious moderate ruled entirely by previous precedents. Once the questioning begins, perhaps both sides will abandon these caricatures and press the more subtle questions that will define Sotomayor's tenure on the Court: Will she be more of an economic populist and civil libertarian than David Souter? Is she a textualist or a democratic constitutionalist? (Her opinions point in both directions). And when does she think courts should be bold--or cautious--in ratifying social change?
Not many fireworks this morning in the hearing room, Hart 216, aside from two interventions by abortion protestors who were quickly hustled off by the cops. (One declared dramatically in Spanish: "Abortion is murder, Sonia Sotomayor!") Because the opening statements are distributed in advance, some reporters at the press table barely looked up from their Facebook surfing and Twittering throughout the morning's proceedings. During a break, however, Senator Leahy came over to the press table and succinctly summed up the morning's takeaway: Asked whether he was shocked by the Republican attacks on Sotomayor's speeches about empathy, Leahy replied that her judicial experience and record as a prosecutor speak for themselves and that "she will be confirmed." Just a few more opening statements after we reconvene at 2, and then--at last--Judge Sotomayor speaks.