“[Robert] Bork was the last Supreme Court nominee to give serious answers to serious questions. But because he was successfully anathematized by the Left, no nominee since has dared to show Borkian forthrightness,” writes Jonah Goldberg today.
It’s a scary thought and points to how Supreme Court confirmation hearings have become kabuki theater. We get at most glimpses, as the Washington Post put it, into the judicial philosophy of nominees. Sometimes not even that. As Jonah notes Justice Sonia Sotomayor gave nary a hint of her real views about the Second Amendment when she came before the Senate. We had to wait until the recent decision, in which she was in the minority, for the reveal:
The more newsworthy opinion came from rookie Justice Sonia Sotomayor. She concurred with Justice Stephen Breyer’s dissent, which held that there is no fundamental right to bear arms in the U.S. Constitution. “I can find nothing in the Second Amendment’s text, history or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes,” Breyer wrote for the minority.
But when Sotomayor was before the Senate Judiciary Committee one year ago for her own confirmation hearings, she gave a very different impression of how she saw the issue. Senate Judiciary Chairman Patrick Leahy asked her, “Is it safe to say that you accept the Supreme Court’s decision as establishing that the Second Amendment right is an individual right?”
Despite being guarded, Kagan did give several answers yesterday that send a clear signal of what kind of justice she will be, including reasoning that will not give comfort to those of us who do not relish the notion of Uncle Sam’s ordering us to buy a specific product (health insurance):
But she also suggested that a controversial requirement in the new federal health-care law that most Americans obtain insurance has a legal basis — a question that is likely to come before the courts. She indicated that she differed with a recent Supreme Court decision that struck down limits on corporate contributions to political campaigns. And she adamantly defended her reluctance as dean of Harvard Law School to sponsor military recruiters on campus because of the ban on openly gay men and women serving in the armed forces.
Even if she is not as forthcoming as Robert Bork, whose rejection was a low point in judicial history, Kagan does appear to be giving more revealing answers that Justice Sotomayor.