The Supreme Court nomination process is one of the weirdest games in American politics. By tradition, the confirmation process is supposed to be non-partisan. Many Americans subscribe to an ideal that judges should objectively interpret the law without political bias. Of course, everyone admits that there is no true objectivity, but many of us still hope that our judges will come as close to objectivity as possible in a political institution. The lifetime appointment system of the Federal judiciary is designed to support this ideal, and the robes and honorifics with which we adorn our judges add cultural reinforcement. While some senators unabashedly vote along partisan lines in confirmation hearings, and Obama himself cited ideological differences in opposing Bush's appointments, many senators are hesitant to openly to challenge nominees' political leanings, and both senators and presidents routinely recite the "no litmus test" mantra.

But what almost everyone really cares about are the litmus tests, the "5 percent of cases that are truly difficult" as Obama put it, the Roe v. Wades, the wiretaps, the death penalties. In consequence, the American people get to watch exciting new episodes of The Confirmation Game every few years. In The Confirmation Game, politicians who oppose nominees on ideological grounds scrounge for any reason other than ideology to vote against confirmation: poor credentials, biases, temperament problems, illegal activities, "illegitimate" judicial philosophies, and extreme views. The result is a hypocrisy free-for-all in which politicians routinely emphasize perceived flaws in candidates they oppose and then later minimize the same flaws in candidates they support while excoriating the other party for politicizing the process.

In Judge Sotomayor's case, conservatives have focused on bias (the "wise Latina woman" comment) and temperament, with some muttering about judicial restraint and extreme views. But Sotomayor's opponents have little chance of success. With a 40-vote minority in the Senate and political consequences for voting against a Latina woman, their only shot is to provoke a negative reaction from Sotomayor strong enough to provide cover for moderate Republicans and conservative Democrats who might be tempted to vote against her. As Senator Lindsay Graham put it, "Unless you have a complete meltdown, you're going to get confirmed."

But in the hearings, Judge Sotomayor has proved to be as excitable as a featureless gray rock. With no meltdown in sight, Republican senators have no option but to indulge in a time-honored Senate tradition: posturing. They go through the motions of opposition to demonstrate to their right-wing constituents that they are tough, sturdily-backboned conservative stalwarts with serious demeanors. But they know that we know that they know...

And for the viewing audiences? We get to laugh about nun-chucks and shout about Ricky Ricardo references and decry the questions that were asked and demand the questions that were not asked and search in vain for something to make a fuss about, none of which remotely affects the outcome of The Confirmation Game. We may as well change the channel to something more suspenseful. When do we get the results back from Michael Jackson's autopsy?

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Cross posted as usual at dagblog.com. You can subscribe to all my posts via RSS feed or email.