Will Sotomayor’s inquisitors focus on the kind of Justice she would be, or will they use her hearings to advance political agendas? This question pervades much of the analysis of the Sotomayor nomination and confirmation process, but is it a fair question? Why do we assume that the members of the US Senate are supposed to put their political philosophies, agendas, and interests aside when providing “advice and consent?”In fact, the two major political parties in America disagree on what makes a “good” justice. They disagree, in fact, on the very definition of justice itself. This disagreement is both principled and political. Why shouldn’t this very public confirmation process be used as a venue for a deliberative debate between liberal and conservative theories of justice? Why do we persist in the pretense that the Constitution and our nation’s laws have objective and universally accepted interpretations, or even that they ought to? Why must we prop up the fiction that all 100 Senators (and all Americans) share the same definitions of the Constitution’s most cherished principles? Why must we endure the intentional obfuscation by Senators’ of their ideological assumptions; something they do in order to avoid being criticized for allowing partisanship to intrude on this supposedly non-partisan process?
In reality, this process is and ought to be an opportunity for Americans to judge the relative merits of two distinct approaches to government, politics, and the law. Why can’t we use these unique opportunities to highlight the contrasting definitions, liberal and conservative, of our creedal principles; equality, freedom, and even democracy itself.
When Sotomayor is attacked by conservative Senators, their criticisms are actually principled disagreements based on disputed definitions. Conservative attacks on Affirmative Action, for example, are based on a particular definition of constitutional equality. For conservatives, the government’s obligation to protect and advance political equality requires that it [the government] always treat individual citizens in exactly the same way. No government action which treats one American differently than another American can be constitutionally justified. This is a “de jure” understanding of equality. The government’s obligation to the principle of equality is fulfilled to the degree that the laws and policies of the government make no distinctions between individual citizens. The government makes one set of rules to which all are bound in exactly the same manner. By this definition, the government has no direct policy making role in the mitigation of social inequality. Any such inequality should be dealt with in civil society, which is to say, non-governmental settings.
Liberals, in contrast to this procedural definition of constitutional equality, adhere to an understanding of this creedal concept that requires governmental interference in the lives and decisions of all Americans. Liberals believe in a “de facto” interpretation of constitutional equality that requires the government to take affirmative steps to protect, and even create, equal opportunities for Americans suffering from systematic discrimination. For liberals, through the identical treatment of all regardless of individual circumstances, the government would be effectively condoning and even perpetuating systemic discrimination in American society.
These are principled (though conflicting) interpretations of constitutional equality that interact with every American’s self interest and conception of the public interest in a dynamic and complicated way. Americans who adopt one of these principled approaches without clear and careful consideration of both, do so at their own, and indeed our nation’s, peril.
If the Sotomayor hearings fail to present these two competing constitutional perspectives openly and with appropriate deference to the internal consistency of each, they will have been yet another missed opportunity to educate Americans about the role of the government in our society, a role that far from being eternally fixed, is the actual and the appropriate stuff of partisan politics in our democracy.