The farce of judicial-confirmation hearings

Setting aside competing views about jurisprudence, can we all agree that Supreme Court confirmation hearings have become a joke? Just look at a couple of the quasi-Orwellian headlines that the Sotomayor hearings have inspired this week: "Sotomayor Vows 'Fidelity to the Law' as Hearings Start." Pause for a minute to think about how banal that utterance is. Better yet, imagine the alternate reality in which a judge said the opposite. Then there's the inevitable "Sotomayor Declines to Talk about Abortion Views." Yes, how unreasonable it would be if one of the people who will be determining the abortion policies of the United States for the foreseeable future were to discuss that issue before being granted a lifetime appointment. The phrase "Kabuki theater" doesn't begin to do this stuff justice (as it were).

At Balkinization, Heather Gerken, a Yale Law professor, is similarly dispirited, suggesting that this week's hearings have made her chosen profession look awfully dull, indeed:

Listening to the exchanges, you would never know that the law is a vibrant entity, a remarkable blend of real-world facts and abstract principles. You would never know that lawyering involves nuance and thought. You would think that lawyering is a witless, mechanical exercise and would be surprised to discover that anyone could find a life in the law remotely inspiring.

Someone reading these words might think that these are all code words for describing a "living Constitution," that they are intended to depict law as a tool for social reform. But I think my description would be instantly recognizable to lawyers and judges who flatly reject what has become the traditional liberal take on the law. Lawyering is a craft in which all of us can take pride.

I blame neither the Senators nor Judge Sotomayor for the rather sad and inert picture of the law they've given us. This is simply what judicial confirmation hearings have become. Still, it's too bad that what is perhaps the law's most public moment gives the public so little sense of what a remarkable institution it is.

I don't even think you need to be especially enamored of American constitutional law, as currently practiced, to conclude that modern confirmation hearings have almost nothing to do with it.

(Photo: Brendan Smialowski for New York Times)