Well, it's important to remember that, as a judge, I don't make law. And so the task for me as a judge is not to accept or not accept new theories; it's to decide whether the law, as it exists, has principles that apply to new situations.
With respect to Judge Sotomayor and her defenders, explain how this paragraph, taken from this morning's proceedings, is not tautological and circular. Of course judges accept new theories. All of them do. Pretending they don't is a feature of American life limited to the twenty hours a year the Senate Judiciary Committee investigates the legal mind of the next Supreme Court justices. (Thanks to Justice R.B. Ginsburg for originating this type of performance.) The advise and consent function of the Senate has turned into a "provide comfort" function that sets up political precedents ("Well, when Obama nominated Judge Sotomayor, she promised she wouldn't make new law, and look what happened!"). Of course there are differences between justices; take Sandra Day O'Connor's minimalism and John Paul Stevens' activism. In theory, these hearings are supposed to help us figure these out. Instead, they're designed to squish everyone into some supposed middle ground where judicial theories and environmental predispositions never matter (except when they do.) That leads to absurdity all around: Senator John Kyl being unaware that white guys bring their perspective to situations, or Patrick Leahy patiently coaching Sotomayor through her days a facts only, mam, prosecutor. Sotomayor won't tell anyone what she thinks about executive power, or anti-trust law, or late-term abortions. Instead, we're supposed to judge her temperament and mien, as if that's the only reason why she was chosen -- as if that's the only predictive information available to those who want to figure out what kind of justice she will be.
I think the title should be SCOTUS Hearings have become all the same.
Worse then figuring out what sort of justice she will be, the whole charade has irrevocably damaged the legal profession by limiting what aspiring Supreme Court judges can say and do and also damaged the institution of courts by making them speak in a language that does not accurately reflect the key legal fault lines which they are deciding on.
As per Cass Sunstein - http://www.prospect.org/cs/articles?article=the_myth_of_the_balanced_court - the idea that Stevens represents the model of liberal activism is a rather modern construction.
As far as her opinions on late-term abortion, it's not her place to determine whether supreme court precedent was well decided. And commenting on cases that may arise or are already in the pipeline is not wise at all before hearing the arguments in either direction. Demands for nominees to commit to making opinions one way or the other before cases come before them aren't reasonable. There's ample room to discuss her many, many existing opinions in virtually every part of law, her training, her career outside of the judiciary, etc.
As for her statement, I don't see what's wrong with it. In fact, it goes well beyond what Roberts and Alito said on the same score. She at least admits that law isn't settled, and that novel cases have to be decided based on general principles and not rigid, existing rules. She's saying it's not her job to invent tortured theories of law, not that she won't be making law.
Very well put Alchemy. Now lets see whether Ambinder actually responds to an intelligent answer to his query.
There aren't any reasons that confirmation hearings couldn't elicit valuable insight into a potential Justice's temperament and judicial philosophy. But the televised hearing process isn't designed to do that — it's been turned into pure political theater.
Rather than asking a nominee how she would rule on a specific issue — such as abortion, affirmative action, the 2nd Amendment, etc. — Senators could (and should) ask open-ended questions, such as "What do you think about the scope of the Commerce Clause?" or "Where is the popular sovereignty of the people vested?" or "How would you reconcile established precedent that was in conflict with the text of the Constitution?" With appropriate follow-up questioning, these types of conversations would tell us volumes about how a Supreme Court justice would rule.
Of course, these lines of inquiry would start to sound at lot like a constitutional law seminar, and probably frustrate the desires of journalists, activists, politicians and some voters to pin-down a nominee to specific answers on burning questions of the day. The Senate is a political body. But one could hope that even those few Senators who aren't lawyers could understand that the Supreme Court isn't just another co-equal "political" branch of government.
Sadly, these sorts of insights into a nominee's philosophy and thought process will never be had through today's confirmation process. And public confidence in the Supreme Court — indeed, in all branches of government — will be further eroded by turning every function into just another blatant exercise of partisan power.
YAWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWWN..............
Leave the bitch alone.
Scrotum hearings.