The Sotomayor hearings got me thinking about originalism which got me thinking about hermeneutics which got me thinking about Leonard Cohen and Bob Dylan and Neil Diamond. (It didn't hurt that I bought the Essential Leonard Cohen and 10 New Songs last week.)
Leonard Cohen today sounds a lot like Leonard Cohen of 40 years ago. He still has a tight lyrical structure, he still writes about love and sex and loss and his vocal range is still about 3 notes wide. Some might say that if you have heard one Cohen song, you have heard them all. But Pico Iyer captured my sense of Cohen (and Dylan) on the liner notes to The Essential Leonard Cohen
"Yet what strikes me most, listening to these songs all at once, is how little in some sense he's changed; the changeless is what he's been about since the beginning. If you think of some of the other great pilgrims of song (Bob Dylan, say, or Van Morrison or Joni Mitchell), you see them pass through philosophies and selves as if through stations of the cross; with Cohen, one feels that he knew who he was and where he was going from the beginning, and only digs deeper, deeper. Listen to the "Master Song" here, and recall that it was written six years before he fell in with a Zen master, Joshu Sasaki-roshi; lose your heart, 35 years later, to "Alexandra Leaving," and remember that he was writing of "Alexandra's double bed" 23 years before, at the beginning of "Death of a Lady's Man." The moon passes through different phases--shows us a different face every night--but it's always the same moon."
Contrast that with Dylan. Dylan changes structure, subject, musical style at the drop of his (sometimes literal) hat. Dylan puts on these styles like disguises. He mixes together all of influences, current and past, to come up with the "new and improved" Dylan grows organically, changing the words and music to fit his mood or the country's mood or just because he's tired of being this year's Bob Dylan. And he doesn't mind making things up as he goes along. He is notorious for speaking jibberish during interviews. Same moon, different solar systems.
Neil Diamond. This will be quick. Same song, same words, same inflection, same meaning (or not) now and forever. Same moon, same aspects (preserved forever in crystal clear audio and yours for the low price of ...)
Here's the legal connection. Cohen is like the second John Harlan: the Constitution's principles never change but their meaning cannot be plumbed once and for all. Each new situation will show a different aspect of the fundamental principles. (e.g. ,We can only say what Liberty means in the context of each case as we explore its deeper and deeper meanings. And meaning takes into account our national experience.) Dylan is more like William Brennan: the Constitution is an organic document that changes in each era. (we have to adapt the Constitution to the modern world) Diamond is like the originalists (more Hugo Black than Scalia): the Constitution never changes, period. (Unless the framers envisioned electronic eavesdropping, the fourth amendment does not protect it.)
Republicans potrayed Sotomayor as Bob Dylan but she sounded more like Neil Diamond: Roe was "settled law," foreign law should never be considered and a judge only applies the law to the facts.
Personally, I would have appreciated her to be a bit more like Leonard Cohen. It may have been easier to repeat the usual magic words and to gut the wisdom that her experience and our nation's experience brings to bear on the legal issues confronting the Court. But, as Leonard Cohen said in Alexandra Leaving,
"Do not stoop to strategies like this...
Do not choose a coward's explanation that hides behind the cause and the effect."
We don't need Neil Diamond on the Supreme Court singing "Sweet Caroline" for the next 30 years and we don't need Bob Dylan making up the lyrics to "Maggie's Farm" on the fly. We could use a Leonard Cohen, who looks unflinchingly and repeatedly at the same subject, exploring its different aspects but never sparing himself (and us) from the sometimes harsh but necessary truth. Let's hope that in 20 years Sonia Sotomayor's greatest hits will be more Cohen than Diamond.