Those Questions About U.S. Judges

Following the tradition of American democracy is Sonia Sotomayor’s audition in front of the Senate Judiciary Committee. Sotomayor, nominated for appointment to the U.S. Supreme Court by President Obama, fought a hard battle. She had to defend her past as a federal judge on the U.S. Court of Appeals against the urgent questioning from senators.

Sotomayor is of Hispanic origin. She has stated that a “wise Hispanic woman” is better for the bench than a “white man,” exposing herself to the accusations of inverted racism by some Republican senators. Sotomayor had to point out that she just wanted to get young Hispanic people closer to considering a juridical career, which they usually avoid. She had to reply to the accusation of being a “liberal activist” who is more interested in modifying laws than applying them. And she had to explain the stands taken in cases regarding racial disputes.

Sotomayor is not the first judge appointed to the Supreme Court who has been questioned by senators, and she won’t be the last one. The audition is a round of questioning with a lot of uncomfortable inquiries, used by the Senate to confirm or reject the presidential appointment (and it uses public opinion to evaluate both the judge and the Senate).

It’s a crucial institution in American democracy. It guarantees transparency for the decisional process by which a representative assembly endorses or rejects a judicial appointment. For the European-Continental sensibility, this process could seem a little strange, but that doesn’t affect the Supreme Court’s prestige. On the contrary, it reinforces it.

American institutions are very different from ours. They derive from another history and another political culture. But, in these institutions, we can find a teaching valuable for us, too. Our tradition (European, and in particular Italian) has corporate closures and lacks transparency. Just think that, in Italy, criticisms of the bench are treated as high treason crimes, subtle attempts of “delegitimizing.” Or think how the Constitutional Court judges are appointed. Are we sure that the court’s prestige would be weakened if appointed candidates had to face public questioning by the Senate?

America is a democracy that combines a strong defense of judges’ independence (at all levels) and the refusal of the existence of closed bureaucratic castes, untouchable by democratic control. In the European-Continental tradition, instead benches are techno-bureaucracies, separated from the democratic process. Considering the growing influence of these techno-bureaucracies on our social lives, it wouldn’t be wrong to reduce, on these aspects, the gap between the two Atlantic coasts.