Strengthening Constitutional Self-Government

No Left Turns

POWER AND PERSPECTIVE

There’s some evidence that those are the two bottom lines to Sotomayor’s understanding of judging. Properly understood, such "legal realism"--in my view--should generate humble restraint. If you don’t really KNOW what you’re doing, you shouldn’t do much. The other view, of course, is that if there are no REAL (or "objective") limits to what you might do, you should get real active in the service of your emotional attachment to your perspective. I agree with those who say that the Republicans lack the warrant and the votes to stop the confirmation, and so they should use this opportunity to develop their own, more popular (if properly articulated) view of judicial restraint--based on the proposition that the Constitution really is LAW that stands independently of anything judges feel they can make.

Discussions - 1 Comment

I already see the temptation to personalize the critique of Sotomayor with the points that she might not be as smart as other judges or that she has been abrasive. Those critiques might or might not have merit (heck I don't know, and I doubt very many others do either), but those kind of critiques are more easily recast as a form of disguised anti-Latino identity politics. "They don't think she is smart because..." or "They can't handle a strong willed Latina..." I think it is best to focus on a small number of issues on which a constitutionalism of judicial restraint coincided with a broad majority of public opinion. Let the attack be on those issues (I think partial birth abortion should be one) and let her supporters try to weasel their way back to their identity politics hiding places. And conservatives might even advance the public understanding of their own ideas.

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