Balkinization  

Wednesday, July 15, 2009

Judicial Confirmation Hearings and the Life of the Law

Heather K. Gerken

Sheryl Stolberg of the New York Times observed yesterday that the hearings seem to have drained all the life out of Judge Sotomayor, noting that a vibrant woman with a lively intellect appeared staid, even phlegmatic during the hearings.

The hearings also seemed to have drained the life out of the law itself. Listening to the exchanges, you would never know that the law is a vibrant entity, a remarkable blend of real-world facts and abstract principles. You would never know that lawyering involves nuance and thought. You would think that lawyering is a witless, mechanical exercise and would be surprised to discover that anyone could find a life in the law remotely inspiring.

Someone reading these words might think that these are all code words for describing a "living Constitution," that they are intended to depict law as a tool for social reform. But I think my description would be instantly recognizable to lawyers and judges who flatly reject what has become the traditional liberal take on the law. Lawyering is a craft in which all of us can take pride.

I blame neither the Senators nor Judge Sotomayor for the rather sad and inert picture of the law they've given us. This is simply what judicial confirmation hearings have become. Still, it's too bad that what is perhaps the law's most public moment gives the public so little sense of what a remarkable institution it is.

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