| The Sotomayor Hearings 3 | |||||
| 작성자 | 오** | 작성일 | 2009-09-04 | 조회수 | 147 |
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A False Depiction of Judging
Heather K. Gerken is the J. Skelly Wright Professor of Law at Yale Law School. She is a former law clerk for Justice Souter.
I have always believed in confirmation hearings. The Constitution belongs to all Americans, and confirmation hearings offer dramatic proof of that fact. The problem is that what appears to be emerging from the hearings is a depiction of judging that is unrecognizable to lawyers of any jurisprudential stripe.
Americans watching the hearing will never catch a glimpse of what judging really involves.
A New York Times reporter has already observed that the hearings seem to have drained all the life out of Judge Sotomayor. My worry is that confirmation hearings will inevitably drain the life out of the law itself, at least in the public’s eyes. Judge Bork was once criticized for thinking of the job as an “intellectual feast,” but we now seem to have reached the point where nominees must claim that the job involves an intellectual famine.
The turning point may have been the confirmation hearings of Chief Justice Roberts, where he compared the Justice to an umpire, calling balls and strikes. Judge Sotomayor now appears to be out-Robertsing Roberts. Her answers sometimes suggest that the job involves even less discretion.
It’s hard to know whom to blame in all of this. Nominees like Chief Justice Roberts and Judge Sotomayor have been thrust into an untenable position. It’s hard to give the right answer when you are asked the wrong question.
The inexorable logic of politics has led both senators and nominees to depict judging as an either/or choice: either the law involves the technocratic application of rules to fact, or it involves free-form democratic engineering. But there is a vast space between those two positions, and somewhere in that space lies the reality of judging. It’s too bad that Americans watching the hearing will never catch a glimpse of that reality.
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