July 30, 2009
Foundational Texts, Interpretation, and Playing the Game: The Religious Underpinnings of the Sotomayor Hearings
— Ingrid Lilly
Following the Senate Judiciary Committee hearings for the nomination of Sonia Sotomayor to the Supreme Court, Mike Seidman, law professor at Georgetown, argued that the proceedings revealed only the "official version" of the American judicial system: that "fidelity to uncontested legal principles dictates results." This simple claim, adopted by Sotomayor in her opening statements, funded most of the Senators' affirmations and critiques over the four days of the hearings. It even appeared in the form of a now-famous metaphor coined by then-Judge Roberts who said, "Judges are like umpires. Umpires don't make the rules. They apply them." The claim also exposed the deep effects of American religious anxiety on the theater of American justice as only our country's Supreme Court has the capacity to reveal.
The claim that law is straight-forward and a judge merely applies it to the presenting facts served as the fork in Senator Jeff Sessions' "dangerous crossroads." Sessions outlined the two paths: "Our legal system is based on a firm belief in an ordered universe and the objective truth," he said to clarify the correct path, calling the judge the "guide to truth." The other direction is a "relativistic world" where "words have no true meaning." Charles Grassley's remarks rang the same tune, urging Sotomayor to "resist the temptation to mold the Constitution to your own personal beliefs and preferences."
The terms "temptation," "truth," "ordered universe," and even the metaphor of the path are only the terminological patina of religious effects on these deliberations. More fundamentally, the Constitution was often treated as a sacred text. The issues of fixed, self-evident meanings for words and the negative role of the interpreter are two of the most prominent anxieties felt in contemporary Christian Fundamentalist doctrines of Scripture. These were the same concerns driving the accusations against Sotomayor for her subjective, identity-based, empathetic judging. We even heard strange emphasis on the written Constitution in the hearings, particularly in John Cornyn's remarks, which seemed to reduce the law to the textuality of our founding document: "It (the court) could continue to depart from the written Constitution. It could further erode the established rights we have in the text of the Constitution. And it could invent even more brand new rights not rooted in the text." Whether a Senator referenced the written word or the entire body of law, the reduction was the same: Law is objective, self-evident, and clear; judges merely execute the truth of the law. A similar sentiment is expressed by the independent Southern Christian church billboard I saw yesterday: "We do not change the message. The message changes us."
Other exchanges in the proceedings seemed engined by similar religious concerns. Ben Cardin used familiar theological language when he described the Constitution and Bill of Rights as "living documents," which is consistent with some approaches to the Bible as requiring the completion of the church, or the sermon, or personal experience and reason to be authoritative. And Sheldon Whitehouse appealed to the documents' "great principles." Discussions of foreign law and mainstream values fell into place within the conceptual analogy as well. First, it was established that foreign law is often consulted but cannot be considered binding on an American legal outcome. However, some argued that foreign law should never be consulted because even when not treated as binding, foreign law acquires authority in the deliberation of justice. It's as if priests were telling parishioners not to read the sacred texts of other religions, or to look for truth anywhere but in the Authority of our sacred text.
Second, much emphasis was placed on how mainstream are Sotomayor's values. Such a concern is easily correlated with hermeneutical theory. When one concedes that subjectivity plays a role in interpretation, anxiety often follows about the identity of the community of interpreters. Here it fell to the Senators who affirmed the judicial role of subjectivity to insure Sotomayor's status as mainstream. Leahy called her a "judge for all Americans," Cardin talked about "mainstream American values," and Charles Schumer itemized a list of statistics to prove Sotomayor's membership in the mainstream. Almost everyone mentioned her "truly American" story.
In the end, however, it was a return to baseball that was supposed to provide the balm to all the religious anxiety. When Schumer asked Sotomayor about her ruling on the baseball strike, he got Chairman Leahy in on the most powerful hermeneutical example of horizons of interpretation: play. The Red Sox, Mets, and Yankees served as powerful proxies for differences of identity. As in baseball, so in hermeneutical theory: Play, more than shared interpretive horizons, determines who can be on the field. And for all Senators, regardless of their stated opinion about the metaphor, the judge does not stand outside the diamond only calling balls and strikes. She is a player, awaiting invitation to the field.
Complete transcripts of the Senate Judiciary hearings, including the manuscripts of the opening speeches, can be found at http://judiciary.senate.gov/hearings.
Louis Michael Seidman's comments can be found in "The Federalist Society Online Debate Series," at http://www.fed-soc.org/debates/dbtid.30/default.asp.
Ingrid Lilly is Assistant Professor of Hebrew Bible and Jewish Studies at Western Kentucky University.