Judge Sonia Sotomayor faces off against the Senate Judiciary Committee this week in a bid to become the 111th justice of the U.S. Supreme Court. The public discussion of her suit-ability for this job thus far suggests that the upcoming hearing will be a carnival of unanswerable questions ("Judge Sotomayor, can you prove to this committee that you are not a reverse racist?") and her nonresponsive answers ("Senator, I must decline to answer that question, as it may come before me in some future case").
Senators more accustomed to making speeches than asking questions will spill thousands of words on simple inquiries. And a judge more accustomed to asking questions than making speeches will use well-rehearsed dodges to avoid answering. The judicial-confirmation process is the political equivalent of Dancing With the Stars, in that the senators perform complex leaps and turns while admiring themselves in the mirror, while the nominee shuffles her feet and calls it a foxtrot.
For those choosing to watch this spectacle on live television, it's useful to point out that most of Sotomayor's interlocutors will not be addressing her at all. Rather, they will be talking to their constituents back home, with Sotomayor serving as a sort of constitutional blackboard on which to sketch out their legal views. Arlen Specter will attempt to tap into Sotomayor's deep judicial subconscious, asking trick questions about whether she thinks precedent is important (she'll say it is) and what she thinks of specific cases (she will take a page from Chief Justice John Roberts's book and summarize cases instead of opining on them). She will make blurry-yet-bold pronouncements about the right to privacy, personal autonomy, and bodily integrity—none of which will clarify her stance on abortion. Both sides will ask how it's possible that she has ruled in a handful of abortion cases over the years without ever addressing the morality of abortion itself, and she will reply that she is a minimalist who answers only the question before her. Both sides will then grind their teeth in frustration at this marked absence of judicial activism, because it will make it very hard to tell whether she will be a judicial activist once she is confirmed. Jeff Sessions will rail that Sotomayor should have been more of a judicial activist (he will say "zealous constitutional watchdog") where gun rights are concerned. Everyone will thus agree that judicial activism is bad except insofar as it's good.
Hovering like a bad smell over these nonquestions and nonanswers, there will be unspoken bitterness and resentment about "identity politics" in America. Specifically, Republicans will complain that as a Latina, Sotomayor suffers from an excess of identity and a dangerous surplusage of politics. Despite an 18-year judicial record showing her to be a moderate, technical judge, Soto-mayor's critics will attempt to smoke out the raging inner racist they suspect lurks deep within her. They will do so by asking repeatedly about her "wise Latina woman" comment from a 2001 speech. (She will say she should have chosen her words better.) There will be a good deal of talk about judicial "empathy."
Conservative white men on the committee will attempt to understand whether and why Sotomayor hates conservative white men by asking endless, obvious variations on the following question: "Did you arrive at your decision in the New Haven firefighters' case because you hate white men?" She will assure them she does not, and tell charming stories of the firefighters she has known.
Republicans on the committee will probe her involvement with an all--women's club and a Puerto Rican legal-advocacy group that have done nothing wrong, in an effort to show that Sotomayor's femaleness and Puerto Rican–ness have metastasized into a form of constitutional brain fever that will, as Sessions describes it, "infect" all of her jurisprudence. And while they grouse and groan about Sotomayor's overidentification with minority litigants, Republicans will grouse and groan that they are being painted as racists for even raising these questions.
There is little doubt that Sotomayor will be handily confirmed. Her judicial record is unremarkable, and her life story is exceptional. And this is the paradox of the Confirmation Foxtrot: we learn too much that is trivial and not enough that is important. The whole process is constructed around the fiction that nominees are hideous monsters in the eyes of half the Judiciary Committee. But calling someone an unintelligent, racist bully under the bright lights of C-Span leaves scars the nominee may never forgive or forget. This game is insufficiently serious to vet a lifetime appointment to the high court, yet serious enough to create lifelong resentments and grudges (think of Clarence Thomas). Confirmation hearings are both surreal and far too real. The court, and the country, might be better served by a bracing dance-off and a viewer poll.