What Biden Hath Wrought
What Joe Biden began when, as chairman of the Senate Judiciary Committee, he borked Judge Robert Bork, has, as Kevin Drum puts it, been taken to its reductio ad absurdum by Sotomayor’s perplexing responses during the confirmation hearings:
And everybody learned their lesson from this: nominate candidates whose views are clear (no more Souters!) and then make sure they say absolutely nothing about those views (no more Borks!). Ginsburg and Breyer invented the technique, Roberts and Alito honed it, and as near as I can tell, Sotomayor has taken it to its reductio ad absurdum apex. If it’s something that might come before the court in the future (and everything comes before the Supreme Court eventually), tell ’em it would be inappropriate to answer. If someone asks a more general question, say that you can’t really answer in the abstract. If more details are provided, switch gears and say that you can’t engage in hypotheticals. As near as I can tell, Sotomayor was barely willing to admit that she had a law degree, let alone that she had any opinions whatsoever regarding the law.
He’s not exaggerating. Randy Barnett at Volokh has a mini-compilation of befuddling exchanges with Sotomayor, but here is the run-away favorite:
FEINGOLD: But what would be the general test for incorporation?
FEINGOLD: I mean, what is the general principle?
SOTOMAYOR: One must remember that the Supreme Court’s analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.
And so the framework established in those cases may well inform — as I said, I’ve hesitant of prejudging and saying they will or won’t because that will be what the parties are going to be arguing in the litigation. But it is…
SOTOMAYOR: I’m sorry.
FEINGOLD: No, no. Go ahead.
SOTOMAYOR: No, I was just suggesting that I do recognize that the court’s more recent jurisprudence in incorporation with respect to other amendments has taken — has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court’s decision how it looks at a new challenge to a state regulation.