Sotomayor and the Senate Hot Seat

Now that the hearings for Judge Sotomayor are in full swing, some assessments can be made as far as the Republicans Senator's lines of questioning, and what they're looking to achieve.

It's pretty much a fait accompli that Judge Sotomayor will be confirmed, but her GOP inquisitors on the Senate Judiciary Committee want to assure their constituents they've asked the "tough" questions of the judge. Much of the focus so far has been, and will likely continue to be, on the Ricci affirmative action case, her stand on Heller, and her speeches. To this point, the judge and the Republican Senators have comported themselves well. They've remained pointed, she's remained patient, and the hearings remain on script.

For me, the discussions surrounding Heller are the most interesting part of the hearings. I believe Heller is one of those Supreme Court decisions that should be read by every American. I don't think I'm wrong when I say the majority of Americans probably believe the Supremes simply sit down, have a brief chat about the issue at hand and how well the lawyers made their arguments, and then commence to take a vote on what the law will be.

Heller, which was written by Justice Scalia, shows the consideration for history and precedent the Court usually applies when making its rulings. It shows how the Court tries to keep its rulings as narrow as possible. It also shows why Justice Scalia is a frustratingly brilliant, but often wrongheaded jurist (which is why he's frustratingly brilliant). Justice Scalia is first and foremost an ideologue. Justice Scalia claims to be wedded to the judicial philosophies of originalism and strict construction, but there were indications in Heller that he was prepared to go further than his narrow ruling (perhaps as far as claiming the 2nd Amendment show be incorporated to the States) had the opportunity been presented. There's little doubt he's telegraphed his desire to have the question come before the court again for further review regarding state laws.

It's a certainty the Court will revisit this issue, which is why Judge Sotomayor has demurred from making much comment on it, other than to say she followed this precedent while on the Appeals Court.

Even Lindsey Graham has conceded Judge Sotomayor, barring a "meltdown", will be confirmed. I'd love to be the fly on the wall when she and Justice Scalia have an opportunity to talk a little law.