May 28, 2009

Now It's "Indefinite" Judicial Empathy

Justin Katz

If, like me, you've mainly viewed Sonia Sotomayor as a sort of Hispanic-hued less-undangerous-than-you'd-like nominee for Supreme Court, Ed Whelan might push you over the edge to full opposition:

Sotomayor complains that "the public fails to appreciate the importance of indefiniteness in the law." But beyond pointing out the uncontroversial fact that some indefiniteness is inevitable (for reasons (a), (b), and (d) in point 1), she nowhere makes the case that indefiniteness is somehow a positive good. She relies heavily on Jerome Frank's legal realist views about the development of law, but nowhere explains why legislatures aren't the proper forum for (to use Frank's phrase) "adapting [law] to the realities of ever-changing social, industrial, and political conditions."

Jurists like Sotomayor are transforming the law from a set of rules by which a society agrees to live into a philosophy decipherable only by an elite class of robed seers. And with a political bias.

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Sotomayor is our first Supreme Court appointee to have grown up in the relatively new law school theory of "critical thinking". This may have unexpected results.

I note the ABA announced today that Sotomayor is a member of the group known as "La Raza". Google that and you will see some interesting commentary. It appears to be linked with groups which desire the "reconquista" of the Southwestern states.

Posted by: Warrington Faust at May 28, 2009 2:10 PM

Let's see . . . Princeton undergrad, Yale Law School, appointed first by a Republican, years of uncontroversial service on the federal courts, and a history of moderate rulings. Opposing someone like this would not only be a waste of time, but just another indication of how out of touch the Republican Party has become. And to oppose her on the ground that she is an "activist" judge, while Justice Scalia, the darling of the right wing, cooks up limitations on Congressional power that are nowhere in the Constitution, is shamelessly hypocritical.

Posted by: Community at May 29, 2009 9:44 AM

And here I thought that Congress was supposed to limited to powers specifically enumerated in the Constitution...

Posted by: Justin Katz at May 29, 2009 6:56 PM

I would like to pass on a thought sent to me from an Australian friend. If one "wise latina woman" can frequently come to better decisons than "wise white men", why do we not just appoint a "wise latina woman" and do away with the Supreme Court?

They do watch our goings on down in Oz.

Posted by: Warrington Faust at May 31, 2009 1:48 AM
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