I know that in law school they teach aspiring litigants never to ask a question in court that you don't know the answer to, but my LSATs were awful so I'll go ahead anyway. This obsessive (and dreadful) coverage of the "Latina woman" comment got me wondering, if, in recent American history, a nominated Supreme Court justice has ever been subjected to such extraordinary scrutiny for something he/she said about the law* outside of the courtroom?
Seems to me these mini-nomination dramas have always been about what the nominated judge has said or written inside the courtroom. That it was the nominee's legal rendering that were put under the microscope and dubbed to be fair game for politicians and the press to go over endlessly.
But the "Latina woman" quote, which is virtually the only line of drama the press can find to hype anymore, was taken from a campus speech eight years ago. Just thinking back to the two most recent confirmation hearings, did Justices Roberts or Alito have to spend an inordinate amount of time answer to speeches they gave, or were they questioned intently about their legal writings?
To me, the AP was way off base when it claimed [emphasis added]:
Sotomayor's public comments are as much a part of the hearings as her lengthy judicial record.
In terms of the hearings, and especially the press coverage, Sotomayor's public comments are the story. Period. And why doesn't the AP try to explain why that's the case? The AP, like the rest of the press covering the hearings, has simply embraced this new idea that public comments are now the center of Supreme Court confirmations.
Again, I don't know the answer for sure, but my hunch is that a speech given outside the courtroom has never played this kind of central role in a nomination hearing in recent memory; not the way the "Latina woman" speech has dominated the news this week. (And for the last month.)
For instance, as Jamison has noted, during the Samuel Alito hearing, there was a minor interest over the fact that, in a job application for the Reagan administration, the nominee had once touted the fact that he'd been a member of an exclusive club at Princeton that tried the limit the number of minorities admitted on campus. So yes, that was non-legal work and it did come up. But in no way did those references at Alito's hearing match the onslaught of "Latina woman" attention.
So, if I'm right, my second point is why has the press embraced this new standard for the first Hispanic woman ever nominated for the highest court in the land? Why has the press decided that what Sotomayor has decided and written from the bench is of relatively little interest, but a campus speech relentlessly hyped by the GOP suddenly passes the threshold for nomination news?
Why has the press adopted a whole new standard for Sotomayor?
*Obviously, the Clarence Thomas nomination hearing ended up focusing a lot of things that were said and done outside the courtroom. But that controversy had little to do with what Thomas said about the law outside the courtroom, and more to do with Thomas' alleged personal misbehavior.