If you suspect this week's Senate confirmation hearings for Sonia Sotomayor will be, like Seinfeld, a show about nothing, you are probably right. To understand why, we need to revisit an era that remade how lawyers and the public think about law, and especially the Constitution.
In the 1930s, academics developed a philosophy they called "legal realism" to undercut judicial resistance to "progressive" statutes such as laws restricting the hours a baker or a woman could work. Legal realism elevated just results over the rule of law. It saw analysis of "the law" as an after-the-fact rationalization that allowed reactionary judges to conceal their empathy for the oppressed. Because legal realists believed judges inevitably made law when they ruled, they thought judges should decide cases with progressive ends in mind.
At the same time, and somewhat inconsistently, realist progressives also condemned judges who declared progressive federal and state laws to be unconstitutional as judicial activists who were thwarting the will of the people. Never mind that the Supreme Court was only tepidly enforcing the original meaning of the Constitution and was upholding the vast majority of enlightened regulations. Any interference of the will of the people was deemed to be undemocratic.
Today we live in a legal world in which many progressives and conservatives share the legal realists' preoccupation with results. So justices must be chosen who will reach the politically correct results or opposed because they will reach the wrong results. Judicial confirmation hearings are thereby turned into a game of gotcha, with questioners trying to trip up the other side's nominees, and nominees quite properly refusing to reveal the only thing their inquisitors truly care about: how they would rule in particular cases that are likely to come before the Court.
But postures must be assumed and questions must be asked. So senators and nominees opine about two empty concepts. The first is "stare decisis" or precedent: Will the nominee follow the hallowed case of U.S. v. Whatchamacallit or not?
Of course, the legal realists detested precedent, which in their time stood in the way of their progressive agenda. Nothing has really changed. Both sides only want to respect the precedents that lead to the results they like. No one thinks justices should follow every precedent, so the crucial issue is picking and choosing which to follow and which to ignore. But how? Well, by the results, of course.
Now, when it comes to the meaning of the Constitution, I agree that precedent should not bind the Supreme Court. The written Constitution remains fixed, regardless of whether past decisions have gotten its meaning wrong. I am grateful that the Supreme Court reversed Plessy v. Ferguson -- the 1896 case that gave us "separate but equal" and an unconstitutional system of racial apartheid. Unfortunately, neither Democratic nor Republican senators will decry the post-New Deal rulings that transformed our constitutional order from what Princeton professor Stephen Macedo has called "islands of [government] powers in a sea of rights" to "islands of rights in a sea of [government] powers." Unless they can explain how we know which precedents to follow and which to reverse -- apart from liking the results -- all pontificating about "stare decisis" is really about nothing.
The second empty issue to be discussed is the bugaboo of "judicial activism" and its conjoined twin, "judicial restraint," which today's judicial conservatives have inherited from New Deal progressives. But what exactly is "activism"? Is it activism when any popularly enacted law is held unconstitutional? Neither Democrats or Republicans truly believe this, however, since they want judges to strike down laws as unconstitutional when doing so leads to the "right result" (but not when it doesn't). So judicial activism means thwarting the "will of the people" when critics agree with the people, while they complain about the "tyranny of the majority" when they disagree.
We can do better.
Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment "incorporate" the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?
Don't ask how the meaning of these clauses should be applied in particular circumstances. Just ask about the meaning itself and how it should be ascertained. Do nominees think they are bound by the original public meaning of the text? Even those who deny this still typically claim that original meaning is a "factor" or starting point. If so, what other factors do they think a justice should rely on to "interpret" the meaning of the text? Even asking whether "We the People" in the U.S. Constitution originally included blacks and slaves -- as abolitionists like Lysander Spooner and Frederick Douglass contended, or not as Chief Justice Roger Taney claimed in Dred Scott v. Sandford -- will tell us much about a nominee's approach to constitutional interpretation. Given that this is hardly a case that will come before them, on what grounds could nominees refuse to answer such questions?
Of course, inquiring into clauses not cases would require senators to know something about the original meaning of the Constitution. Do they? It would be interesting to hear what Sen. Al Franken thinks about such matters, but no more so than any other member of the Judiciary Committee. Such a hearing would not only be entertaining, it would be informative and educational. After all, it would be about the meaning of the Constitution, which is to say it would be about something.