If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified.
So said Georgetown law professor Mike Seidman (linked here at the Volokh Conspiracy) when referring to Supreme Court nominee Sonia Sotomayor’s startling [expected?] remake as an originalist, conservative, judicial minimalist.
Seidman is right to be concerned about the judge’s testimony yesterday and today (albeit for the wrong reasons). Seidman was upset, of course, that Sotomayor’s handlers in the Obama Administration felt it necessary for her to not only tone down her rhetoric, but to dispatch of almost 20 years worth of legal opinions and legal writings and speeches. Still, accusing someone of perjury is a serious charge.
Seidman continues “Either Judge Sotomayor had to misrepresent what she knows judges (all judges, conservative and liberal) do in hard cases, or she had to risk defeat. I’m willing to concede that this is not an easy choice, but I nonetheless think that she made a serious mistake.”
If you knew absolutely nothing about Sonia Sotomayor before Tuesday’s confirmation hearing and judged her entirely on her answers, you could easily come to the conclusion that she had been nominated by Pres. George W. Bush and was likely to sail through confirmation with the strong support of conservatives in the legal community…But most likely, her rhetoric suggests a concession on the part of the Obama administration that the attitudes exhibited in her previous statements and speeches just won’t sell.
No conservative, of course, should believe that the nominee has completely changed her judicial philosophy since she was nominated for the Supreme Court, but it’s encouraging to know that her views and the views of Seidman and his ilk, are far outside the mainstream (although they are mainstream among legal academics).
James Copland of the Manhattan Institute nonetheless believes the theater playing out this week before the Judiciary Committee is good for the future of legal politics, stating “Sotomayor embraced legal formalism and rejected legal realism, critical race theory, and the host of other academic deconstructionist fashions of the past eighty-odd years.” He continues by arguing that any future nominee will be held to the Sototmayor Standard: someone who professes to be as leftwing as any potential Obama nominee actually is will seem even more outside of the mainstream when compared to this week’s Sotomayor.
If only Justice Sotomayor would actually decide cases according to the judicial philosopy she claims this week.