How many candidates for Congress—Democratic and Republican—have you heard loudly insist that they don’t believe in party labels, just in doing the right thing? And how many of them, once elected, end up voting with their party pretty much all the time?
It’s an absurd dance. Voters like hearing about “independence” and “bipartisanship,” so candidates indulge them, only to take office and immediately morph into the party-line loyalists they just spent a year swearing that they weren’t. There are some exceptions to this rule (Arlen Specter comes to mind), but by and large, you can predict how more than 90 percent of senators and House members will vote on anything just by their party label.
Why, then, do we pretend the same phenomenon doesn’t apply to Supreme Court justices?
For the last few days, Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, has led his party’s attack on Sonia Sotomayor. In part by repeating her “wise Latina woman” remark from 2001 over and over, Sessions (with help from his fellow Republicans) has sought to disqualify Sotomayor on the grounds that she holds personal biases that will make it impossible for her to interpret the law impartially. As Sessions put it on Wednesday, his concern is “whether agendas are being promoted through the law rather than just strictly following what the law says.”
Therein lies the absurdity of this and every Supreme Court confirmation hearing—but this one in particular. Sessions assumes that there’s only one correct way to decide every Supreme Court case and that “the law” makes it absolutely clear what that way is—which is like saying there’s only correct way to vote on any piece of legislation in Congress and that there exists a clear, exact, and unimpeachable source for divining what that way is.
But that’s ridiculous. On any given issue, Democrats in Congress will see the right decision one way, and conservatives the other. Both will insist that the facts are on their side, both will swear they are motivated by the best interests of the people, and both will claim they are simply adhering to the oath they took upon assuming office.
This is to be expected. No matter what they said about independence in their campaigns, most members of Congress are either generally liberal or generally conservative and most important votes in Congress can be reduced to a liberal and conservative position. So the same people who as candidates insisted they’d put the people over their party wind up voting with their party 99 percent of the time once in office.
Now, consider the Supreme Court. Just like the voters who want to hear all about bipartisanship from Congressional candidates, senators love hearing all about “fidelity to the law” (which Sotomayor has repeatedly pledged this week) from Supreme Court nominees. And yet, just like with members of Congress, we can tell on pretty much every contentious case before the Supreme Court how every justice will vote—and it’s almost always in accordance with the ideology associated with the party of the president who nominated him or her.
The most famous example of this is the Bush v. Gore case that settled the 2000 election. Before then, there had never been any partisan or ideological divide on the issues at the heart of the Florida recount. But the fault-line quickly emerged, with conservatives shouting for legal interpretations that favored George W. Bush and liberals pushing for those that would benefit Al Gore. Rest assured, had it been Gore who led the initial Florida count and Bush who had been victimized by hanging chads, each side would have passionately embraced the opposite view.
When the matter finally reached the Supreme Court, the most reliably conservative justices (William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Connor) all sided with the conservative/Republican argument, while its four liberal members (John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter) all voted for the liberal/Democratic case. (Yes, Stevens and Souter were Republican appointees, but just like Congress has the occasional liberal Republican or conservative Democrat, so does the court.)
And this is the norm for the Supreme Court. Sure, there are plenty of 7-2 and even 9-0 rulings, just like the House has its share of 431-4 votes. But by and large, especially with momentous cases, you can accurately predict well ahead of time how virtually every justice will vote. Mind you, those justices would all surely insist that they are simply adhering to the law, to the Constitution, and to the oaths that they took. But just like members of Congress, what they are really doing is making ideology-influenced interpretations.
There’s every reason to believe that Sotomayor will interpret the law from a generally liberal perspective. That’s why Barack Obama picked her. Just like there was every reason to believe that John Roberts and Samuel Alito, Bush’s two Supreme Court picks, would interpret the law from a conservative perspective—which they have. An ideology is nothing more than the accumulation of a lifetime’s worth of “biases.” Every justice brings one to the court, just like every congressman brings one to the House and every senator brings one to the Senate.
Sessions’ argument is disingenuous. His concept of “following what the law says” is as subjective as Sotomayor’s, or anyone else’s. It’s also as predictable. Were Sessions on the court, we’d have little trouble guessing how he’d vote in most cases—just as we have little trouble guessing how he’ll vote on anything in the Senate now.
Sessions is really bothered by Sotomayor because she’s probably a liberal. He also may be bothered by her ethnicity. Wouldn’t it be nice if he could drop the ridiculous language about “agendas” and just say so?