Balkinization  

Friday, July 17, 2009

Decoding and Deconstruction: The Sotomayor Hearings

Bernard E. Harcourt

Mark Tushnet is certainly right in his post earlier this week that the confirmation hearings had a large element of ritual and would be an intriguing object of study for anthropologists. But I also think that they offer a lot to legal scholars, political scientists, and rhetoricians (and especially our students), not just because Judge Sonia Sotomayor handled herself so ably, but more importantly because she made profound critical intellectual moves in the process.

I have in mind one exchange in particular, during which Judge Sotomayor masterfully deconstructed a question, exposing all of the politics that infused the very form of the question, and then deftly defused the situation, leaving the questioner disarmed.


The question itself was skillful. The senator was not probing for a personal position, nor explicitly seeking a view on how the judge would rule in a particular case. The question had been formulated well in advance. It was smart, even devious. It could only either elicit damaging testimony or lock-in a position for future political gain. Senator Cornyn asked:

“If the Supreme Court in the next few years holds that there is a constitutional right to same-sex marriage, would that be making the law? Or would that be interpreting the law? I'm not asking you to classify -- excuse me. I'm not asking you to prejudge that case or the merits of the arguments, but just to characterize whether that would be interpreting the law or whether that would be making the law.”

Judge Sotomayor could have taken a politically expedient route. Alternatively, she could have avoided the question by answering that it depended on what the courts had done in the meantime. Or she could have lectured the senator on the subtle gradations between “making” and “interpreting” the law.

But instead, Judge Sotomayor deconstructed the question. She decoded it, right there in front of our very eyes. That was not ritual, I don’t think. It was a brilliantly incisive response—and extremely pedagogical. Judge Sotomayor showed the senator how loaded his question was—and responded truthfully in such a way as to disarm the questioner by showing him that any possible answer to the question actually involves taking a legal position. Here is what the judge said:

"Senator, that question is so embedded with its answer, isn’t it? Meaning, if the court rules one way and I say that’s making law, then it forecasts that I have a particular view of whatever arguments may be made on this issue… I understand the seriousness of this question. I understand the seriousness of same-sex marriage…

This is the type of situation where even the characterizing of whatever the court may do as one way or another suggests that I have both prejudged an issue and that I come to that issue with my own personal views suggesting an outcome. And neither is true. I would look at that issue in the context of the case that came before me with a completely open mind."

Now that we are all comfortably sitting at our computers playing Monday morning quarterback, it’s easy to analyze the question and think it over. At the hearing, though, these questions are coming at a fast clip and under intense pressure. That was a curve ball. And the judge, after two-and-a-half days of questioning, responded in a simply remarkable—and intellectually brilliant—way. It was a critical move that was incredibly perceptive, and it was a remarkable performance that was extremely pedogical.

So, a couple of thoughts. First, it would probably be worth dissecting more of Judge Sotomayor’s responses to explore other forms of decoding. Second, these hearings should be teaching tools for our students, including but not only anthropologists. And one last thought. Mark Tushnet’s claim that “anthropologists who study rituals would be better at informing us about what's happening at any moment” is, well, true. But, for better or for worse, it is also true for most human practices and institutions, including our best faculty workshops and seminars, faculty meetings, bar examinations, political conventions, Fortune 500 board meetings, grass-roots organizing. . . and also, probably, our blog posts!

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