I have to say, I'm enjoying not listening to the Sandra Sotomayor confirmation hearings. I suppose that's a conundrum: How could I possibly know that not doing something is a feel-good experience? Well, the answer to that puzzler is that I have listened to short sections of the hearings. They're unbearable. They're the forensic equivalent of Muhammad Ali's "rope-a-dope," the tactic he improvised to tire out and eventually beat the bigger, stronger George Foreman in 1974.
Not to compare the hearings with that fight in any way. Ali's method was brilliant and exciting. No one expected it, and it represented the supreme gamble that his wits and reflexes would allow him to survive long enough against the pure power of his opponent to eventually reset the odds in his favor.
What's going on in Washington now bears no resemblance to that. The hearings are so predictable, so empty of substance, so free of risk. They have turned into a ritual in which the appointing president's opponents windmill away at the nominees, desperate to score points even with the most trivial forays. The new court hopefuls, for their part, cover up, trying to avoid saying anything to any questioner that might give their foes advantage. Their audience learns they never prejudge anything. You wonder how they might answer a question about their favorite Ben & Jerry's flavor or how they'd ever manage to select one while they're shopping.
I liked this exchange yesterday between Sotomayor and Arlen Specter, Pennylvania's new Democratic senator. Specter wanted to know what the nominee thinks about the Supreme Court taking on more cases. Sotomayor didn't want to say "until I've experienced the process." (Here's the transcript.)
You can imagine what happened when Specter turned to the topic of the Bush administration's Terrorist Surveillance Program and the court's declining to hear an appeal on the program's constitutionality. Specter reminded Sotomayor that he had written to her a number of times advising her he would ask her about this during the hearings. "I'm not asking you how you would decide the case," he said, "but wouldn't you agree that the Supreme Court should have taken that kind of a major conflict on separation of powers?"
Sotomayor wasn't going to fall for a trap like that--offering an opinion on whether the issues in a case merited the court's attention. Here she goes:
Sotomayor: I can understand not only Congress's or your personal frustration, and sometimes the citizens when there are important issues that they would like the court to consider. The question becomes what do I do if you give me the honor to serve on the Court. If I say something today, is that going to make a statement about how I'm going to prejudge someone else's...
Specter: I'm not asking you to prejudge. I'd like to know your standards for taking the case. If you have that kind of a monumental historic conflict and the court is supposed to decide conflicts between the executive and legislative branches, how can it possibly be justified not to take that case?
Sotomayor: There are often, from what I understand -- and that's from my review of Supreme Court actions and cases of situations in which they have or have not taken cases, and I've read some of their reasoning as to this. I know that with some important issues, they want to make sure that there isn't a procedural bar to the case of some type that would take away from whether they're, in fact, doing what they would want to do, which is to ...
Specter: Well, was there a procedural bar? You've had weeks to mull that over, because I gave you notice.
Sotomayor: Senator, I'm sorry. I did mull this over. My problem is that, without looking at a particular issue and considering the cert briefs file, the discussion of potential colleagues as to the reasons why a particular issue should or should not be considered, the question about...
Specter: Well, I can tell you're not going to answer. Let me move on.
The rope-a-dope routine at least shows Sotomayor knows how to survive. But to go back to the ring for a moment, the performance doesn't call to mind the imagination and courage Ali used to conquer Foreman, but his tactics in another fight. A few years after the Foreman fight, an unprepared Ali lost his title to Leon Spinks. It was Spinks's finest hour, and it was short-lived. He fought Ali again before the year was out, and this time Ali came with a game plan: to hit Spinks when he could, which was often enough, and hang onto him the rest of the fight. It was a tired, embarrassing display. But it worked, and Ali regained his crown, if only for a moment.
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