Once Sonia Sotomayor is confirmed to the Supreme Court, all those hours of predictable questions and cautious replies at her Senate confirmation hearings will be filed and forgotten as she judges the way she sees fit. Nobody can hold her to what she’s said.
That’s the usually unspoken reality of confirmation proceedings. Once the votes are cast, they don’t count.
It was spoken this time in a brief, little-noted exchange during four days of Senate Judiciary Committee hearings.
"Is there anything the Senate or Congress can do if a nominee says one thing seated at that table and does something exactly the opposite once they walk across the street?" asked Sen. Arlen Specter, D-Pa. The Supreme Court is across the street from the Senate hearing room.
He knew the answer, of course. No. But Sotomayor didn’t reply that bluntly.
"That, in fact, is one of the beauties of our constitutional system … that we do have a separation of powers," Sotomayor responded.
"Beauty is in the eye of the beholder," Specter said. "It’s only Constitution Avenue there."
"Well, the only advantage you have in my case is that I have a 17-year record that I think demonstrates how I approach the law, and the deference I give to the other branches of government."
There’s no reason to suspect that when Judge Sotomayor becomes Justice Sotomayor, she’s going to change judicial course. But it has happened, more than once, sometimes to the dismay of the presidents who appointed justices and the Senate that confirmed them to lifetime appointments.
For example, there’s the record of David H. Souter, the justice Sotomayor is succeeding, a reserved New Hampshireman whose 1990 confirmation was opposed only by nine liberal Democrats, fearful that he was a closet, hard-line conservative.
In his confirmation hearings, Souter endorsed the concept of originalism, which holds that the Constitution should be followed according to the intent and the words of the men who wrote it. That was the philosophy of no less a conservative than Robert H. Bork, whose nomination to the Supreme Court had been rejected three years before by senators who deemed him too dogmatic and hard right.
Bork’s writings and rulings did him in politically. Souter came with no paper trail and President George H. W. Bush chose him as a safely conservative nominee to the court. At first he was. But he changed course on the bench, moved to the middle and then the more liberal wing of the court, voting against abortion restrictions, supporting criminal defendant rights, siding with workers in employment disputes.
So the justice Bush had been told would be a "home run" for conservatives became part of the liberal bloc on a conservative court. And when Sotomayor succeeds him, the first justice named by a Democratic president in 15 years, her decisions are not likely to alter the balance on a court usually dominated by its five most conservative members.
Chief Justice Earl Warren is the classic case of a justice who defied the expectations of his sponsors and, indeed, the president who chose him, Dwight D. Eisenhower. Warren was the three-time governor of California, the Republican vice presidential nominee in 1948, and a prospective challenger for the GOP presidential nomination in 1952. Instead, he endorsed Eisenhower, and was promised appointment to the first opening on the Supreme Court.
The opening was for chief justice, in 1953. But Warren, a law and order Republican as governor, ruled as a liberal and an activist on the court. His first major ruling was on the first landmark case of the civil rights era, Brown v Board of Education, which banned school segregation in 1954. Among the other landmarks of the Warren court were decisions that required publicly financed attorneys for criminal defendants, and compelled police to advise people they arrested of their rights, the so-called Miranda warning.
Eisenhower came to regret his choice of Warren, and once was quoted as calling it a damned fool mistake. But he couldn’t do anything about it. Warren retired as chief justice in 1969, eight years after Eisenhower left the White House.
Then there was Justice Harry A. Blackmun, nominated by President Richard Nixon in 1970 and confirmed unanimously by the Senate. Blackmun was a Republican and close friend of Chief Justice Warren Burger, who recommended him to Nixon for the high court. For five years, they voted together on closely contested decisions, so often that they were called the Minnesota Twins.
But Blackmun drifted toward the more liberal wing of the court, especially after 1973, when he wrote the opinion in Roe v Wade, which established a constitutional right to abortion, the most bitterly disputed ruling of that era or this. While Chief Justice Burger concurred in that decision, Blackmun’s dissents in other cases fractured their friendship. By the time he retired in 1994, Blackmun was rated among the most liberal justices.
"Having been appointed by a Republican president and being accused now of being a flaming liberal," he said in 1991, "the Republicans think I’m a traitor and the Democrats don’t trust me."
And, he said, he didn’t care, because he was beholden to no one.
Walter R. Mears reported on government and politics for The Associated Press for more than 45 years. He is retired now and lives in Chapel Hill, N.C.