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Lawspeak, or: She'll Do Well in America

The opinions expressed by columnists are their own and do not necessarily represent the views of

For some of the more demented among us, like me, there's nothing quite so engrossing as watching C-SPAN's complete, unexpurgated, dull moment after dull moment, replay of the day's hearing on the nomination of a Supreme Court justice. We all have our strange tastes.

I anticipate it the way others do the opening day of the baseball season. Each to his own sport. (When baseball and jurisprudence are combined, it can be a delight. See the essay "The Common Law Origins of the Infield Fly Rule.")

For those of us watching this game from the bleachers, the nomination of Her Honor Sonia Sotomayor to the court does not promise an historic confirmation hearing. Her appearance before the Senate Judiciary Committee is not likely to compare with Clarence Thomas' almost two decades ago. His confirmation, too, was going to be routine, but it turned out to be a revelation.

Invited to cringe and crawl before the committee to win confirmation, Clarence Thomas declined. Instead, he responded to the sneers and titillations about his private life with steely disdain, and, finally, with both verbal barrels:

"This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It is a national disgrace. And from my standpoint, as a black American, as far as I am concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that, unless you kow-tow to an old order this is what will happen to you, you will be lynched, destroyed, caricatured by a committee of the U.S. Senate, rather than hung from a tree."

I wanted to stand up and cheer.

If you want to see a contrast between preening, condescending familiarity and simple human dignity, just call up the YouTube video of Joe Biden questioning Clarence Thomas during his confirmation hearing. How startlingly young Justice Thomas looks. Yet he transmitted a self-respect that left his would-be tormentors backing away, making excuses, speaking of fairness even as they tried to hide how unfair they'd been.

But the coming hearings on Judge Sotomayor's nomination to the high court may not produce a moment of truth like Clarence Thomas's. His definitive destruction of his small-minded critics ranks alongside Joseph Welch's dispatching Joe McCarthy, the poor slob, with a single phrase during the Army-McCarthy hearings of 1954. ("Have you no sense of decency, sir, at long last? Have you left no sense of decency?") How quickly bullies become almost pitiable figures once they're exposed.

We may live in less edifying times now, yet all the spin and counter-spin preparatory to Judge Sotomayor's appearance in the committee room have their own fascinations. And consolations, for even if she turns out to be the mediocre judge many anticipate, she'll represent a giant leap above the justice she is to succeed on the high bench. The one whose name you're most likely to forget when trying to remember all nine. What was it Churchill said of Clement Atlee? It could apply just as well to the Hon. David Souter: a modest man with much to be modest about.

The sport in this confirmation hearing will lie in how far the nominee is willing to go to ingratiate herself with the committee, for the senators pretty well hold it in their power to grant or deny the lady her life's ambition. How much simple human dignity might she be willing to sacrifice to win a seat on the court? That's always the most fascinating aspect of such hearings.

The grandfather who raised Clarence Thomas, and taught him self-respect by working him in the fields till he was a mass of sweat and sores, would surely have been proud of how his grandson rose above his less than grand inquisitors. Will there be a Clarence Thomas moment for Sonia Sotomayor, too, or will she smoothly navigate the shallows of the law to the committee's satisfaction?

Her honor has already proven adept at leaving different impressions on at least one legal issue sure to keep coming before the court: gun control, aka gun rights if you prefer.

According to the AP, she's told one senator -- Colorado's Mark Udall -- that she'd stick with the Supreme Court's decision that struck down a ban on handguns in the District of Columbia, thus upholding the Second Amendment and Americans' right to bear arms.

But she's told another senator -- South Carolina's Jim DeMint -- that she'd stick with an appellate decision she's voted to uphold that asserts the Second Amendment prevents only the federal government, not states or localities, from infringing on the right to bear arms.

Interesting. Her Honor is nothing if not flexible.

As my immigrant mother might say on hearing someone deliver a particularly smooth sales pitch, she'll do well in America. Any judge can look at a case and give you an opinion. One destined to be confirmed as a justice of the Supreme Court of the United States can look at a case and give you the opinion you want.

Just what kind of associate justice Her Honor would prove on the Supreme Court is hard to know, but she's already proving one heckuva politician.

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