The 'Roe' recital

This hearing has proved to be the same formulaic event. Reporters excitedly reported how Sotomayor expressed support for such doctrines as stare decisis to uphold precedent as though a nominee is likely to announce her intention to discard precedent and shape the law in her own image. These answers have been virtually identical for conservative and liberal justices. Consider the common question over the validity of Roe v. Wade and its successor decision in Planned Parenthood v. Casey upholding the right to an abortion. Here is Roberts' response to the Roe question: "As of '92 (in Casey), you have a reaffirmation of the central holding in Roe. That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles." Here is Sot omayor's response: "The court's decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court. … That is the Supreme Court's settled interpretation of what the core holding is and its reaffirmance of it."

Ironically, while she skirted questions about Roe v. Wade during her confirmation, Ginsburg had no problem discussing her views once she was confirmed — despite the fact that she is likely to vote on these issues while on the court. Recently, Ginsburg said the Roe decision was predicated on a desire of some people to diminish "populations that we don't want to have too many of" a curious claim that would have transformed her Senate hearing. Likewise, Justice Antonin Scalia has spoken on issues pending before the court such as detainee rights and separation of church and state. It appears that this information about a nominee's views is improper only when it is the most relevant.

A nominee's legal philosophy is rather difficult to understand without discussing legal doctrines. It is like watching The Sound of Music without any of the musical numbers. One can certainly appreciate the acting, but you can hardly get a feel for the movie without the songs.

Once you discard answers that simply restate basic legal doctrines or principles, little is revealed in these hearings that you could not find in a standard legal hornbook. The Sotomayor hearings have been long on insights into her personality and short on insights into her philosophy.

Yet, despite her moderate voting record, she has some worrisome rulings for civil libertarians. If Sotomayor votes the way she has on the 2nd Circuit, liberals could still lose ground on the Supreme Court over free speech, student rights and other core areas. Her life story will mean precious little to those people who might be stripped of rights or denied legal protections. For example, Sotomayor held in one case that schools could discipline students for statements that they made on a blog in their personal time. The impact of such a sweeping denial of free speech rights is hardly lessened with the consideration of Sotomayor's life story.