If you suspect this week's Senate confirmation hearings for Sonia Sotomayor will be, like Seinfeld, a show about nothing, you are probably right. To understand why, we need to revisit an era that remade how lawyers and the public think about law, and especially the Constitution.
In the 1930s, academics developed a philosophy they called "legal realism" to undercut judicial resistance to "progressive" statutes such as laws restricting the hours a baker or a woman could work. Legal realism elevated just results over the rule of law. It saw analysis of "the law" as an after-the-fact rationalization that allowed reactionary judges to conceal their empathy for the oppressed. Because legal realists believed judges inevitably made law when they ruled, they thought judges should decide cases with progressive ends in mind.
At the same time, and somewhat inconsistently, realist progressives also condemned judges who declared progressive federal and state laws to be unconstitutional as judicial activists who were thwarting the will of the people. Never mind that the Supreme Court was only tepidly enforcing the original meaning of the Constitution and was upholding the vast majority of enlightened regulations. Any interference of the will of the people was deemed to be undemocratic.
Today we live in a legal world in which many progressives and conservatives share the legal realists' preoccupation with results. So justices must be chosen who will reach the politically correct results or opposed because they will reach the wrong results. Judicial confirmation hearings are thereby turned into a game of gotcha, with questioners trying to trip up the other side's nominees, and nominees quite properly refusing to reveal the only thing their inquisitors truly care about: how they would rule in particular cases that are likely to come before the Court. READ MORE
by Randy Barnett
Randy E. Barnett teaches at Georgetown Law and is the author of Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2005).
Added to cato.org on July 13, 2009
This article appeared in The Wall Street Journal on July 13, 2009.
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