Wisconsin Senator Russ Feingold joined fellow Democrats and one Republican (South Carolina Senator Lindsey Graham) on the winning side of last week’s 13-6 vote on the Senate Judiciary Committee to approve the Supreme Court nomination of Judge Sonia Sotomayor.
But the chair the Judiciary Committee’s subcommittee on the Constitution wishes he knew a little more about the thinking of the woman who is now all but certain to be confirmed before the Senate breaks next week for the traditional August recess.
“I cannot say that I learned everything about Judge Sonia Sotomayor that I would have liked to learn,” he said in an endorsement of President Barack Obama’s first high court nominee by the Judiciary Committee’s most determined defender of the Constitution. “But what I did learn about her makes me believe that that she will serve with distinction on the Court, and that I should vote in favor of her confirmation.”
Feingold’s measure of whether a nominee is serious about maintaining a system of checks and balances and protecting basic liberties is an important one. To a greater extent than other members of the Judiciary Committee or the Senate as a whole, he has been willing to stand alone when it comes to Constitutional questions. That has put the Wisconsin Democrat at odds not just with totalitarian Republicans like former Vice President Dick Cheney but with compromising Democrats such as former Senate Majority Leader Tom Daschle.
To Feingold’s view, Obama’s nominee meets Constitutional muster.
“Judge Sotomayor’s record and testimony satisfied me that she understands the important role of the Court in protecting civil liberties, even in a time of war,” the senator said. “She sat on a Second Circuit panel that struck down portions of the National Security Letter statute that was so dramatically expanded by the Patriot Act. And when I asked her how September 11 changed her view of the law, she gave the following answer: ‘The Constitution is a timeless document. It was intended to guide us through decades, generation after generation, to everything that would develop in our country. It has protected us as a nation. It has inspired our survival. That doesn’t change.'”
Feingold said he was especially impressed with Judge Sotomayor’s answer to a question regarding the judicial decisions relating to the forced internment of Japanese citizens during World War II. In arguing that the nominee recognizes the awesome responsibility of jurists to prevent assaults of basic freedoms, he cited a response by the judge to one of his questions regarding the internment issue: “A judge should never rule from fear. A judge should rule from law and the Constitution.”
“Those words give me hope that she will have the courage to defend the liberties of the American people from an overreaching executive or legislative branch,” explained Feingold. “At the same time, she appreciates the deference the judiciary must give to the legislature as it seeks to solve the problems facing the American people. I don’t see in her record or in her public statements a burning desire to overturn precedent or to remake constitutional law in the image of her own personal preference, and I certainly don’t see bias of any kind. I was also impressed with her record and statements during the hearing on judicial ethics. Judge Sotomayor seems to understand that the extraordinary power she will wield as a Justice must be accompanied by extraordinary care to guard against any apparent conflict of interest.”
That’s about as warm an endorsement as a court nominee has gotten from Feingold.
Yet it was not an unqualified endorsement.
Said the senator, “I do want to express a note of dissatisfaction. Not with you certainly, or with my colleagues, and not with Judge Sotomayor, but with a nominations process that I think fails to educate the Senate or the public about the views of potential Justices on the Supreme Court. I’ve said before that I do not understand why the only person who cannot express an opinion on virtually anything the Supreme Court has done in recent years is the person from whom the American public most needs to hear.”
Feingold explained that:
“It makes no sense to me that the current Justices can hear future cases notwithstanding the fact that we know their views on a legal issue because they wrote or joined an opinion in a previous case that raised a similar issue, but nominees for the Court can refuse to tell us what they think about that previous case under the theory that doing so would compromise their independence or their ability to keep an open mind in a future case.
I remain unconvinced that the dodge that all nominees now use – ‘I can’t answer that question because the issue might come before me on the Court’ – is justified. These hearings have become little more than theater, where senators try to ask clever questions and nominees try to come up with cleverer ways to respond without answering. This problem certainly did not start with these hearings or this nominee, but perhaps it is inevitable. The chances of the Senate rejecting a nominee who adopts this strategy are very remote, based on the recent history of nominations. Nonetheless, I do not think it makes for meaningful advice and consent.”
Political insiders on both sides of the partisan and ideological aisle will note Feingold’s endorsement of Judge Sotomayor’s nomination and pay scant attention to the rest of what the senator said.
Those who take seriously the role of the Senate in checking and balancing presidents by providing advice and consent regarding high court nominees should recognize that Feingold’s most important message has to do with the need for Congress to renew the separation of powers provisions of our battered Constitution.