The Sotomayor Verdict

I listened to the Sotomayor hearings, and I came away with conflicting impressions.

For example, she said unequivocally that the right to keep and bear arms is an individual right, something her perhaps-future liberal colleagues denied in their dissent of DC v. Heller. This is something that she could not easily go back on later, so that's a good thing. However, she also seemed a bit weak on questions about the finer points of incorporation doctrine (saying she wasn't sure what Presser v. Illinois said). On the other hand, I don't really care about her decision that the Second Amendment is not incorporated, since that's something I believe current doctrine says only the Supreme Court can do (even though I find that doctrine, Selective Incorporation, detestable).

I found her to be generally forthcoming, which is a good thing. I believe she's telling the truth that she looks at what the law says, and attempts to rule based on what it says. However, she also seemed to express approval of consequentialism, at various points, talking about interpreting law based on the effects of the laws, and so on. Unfortunately, the Senators really didn't give me a good feel for her views here, and it's something we can never really know about a judge until they are in that position, and she hasn't been.

I also had trouble with her answer for her "wise Latina" comment, more in her new answer than how I read her comment before, but I've already discussed that.

One thing I liked about her is that she draws (or refuses to draw, depending on how you look at it) interesting and thoughtful distinctions. She was asked whether the government "made mistakes" in passing certain anti-terrorism laws or performing certain actions that the Court has already struck down; she said, she didn't think so, that it wasn't that it made a mistake, it was just that the laws or actions didn't fall within constitutional or statutory limitations.

While one might reasonably call that a "mistake" to fail to fall within those limitations, the emphasis of the Senator was in trying to impugn the acts, and Sotomayor refused to do so. This is a distinction I tried to emphasize in the wake of the Court's striking down a portion of the Military Commissions Act due to its lack of protection for the right of habeas corpus: the law did attempt, and to some degree succeeded, in protecting that right; the Court simply ruled it didn't go far enough to do so. The Court was not saying the Congress was bad or evil or anything like that; it simply said the law in question needed improvement to be constitutional.

That is, there's a world of difference between saying "your law isn't good enough" and "your law demonstrates that you have no respect for the Bill of Rights." The Democrats tried to say the latter, but the Court only said the former, and Sotomayor picked up on it and answered it admirably.

At the end of the day, all things being debated and discussed, the question is whether I believe that she will fall prey to the diabolical evils of consequentialism, or whether she will hold true to the textual principles she upheld in her hearings. And all I can say is that I saw little attempt to obfuscate in the hearings; her record is one of following precedent and statute, and that I would not disqualify her due to my fears about whether she might not do what she said she would do.

I pray she doesn't prove herself to be dishonest, that she really does believe in the ultimate primacy of the law as written and intended, rather than the primacy of the divined "purpose" of the law (as Justice Breyer and President Obama believe) that allows a judge to simply ignore what the law says if so doing would, in their minds, fulfill the law's purpose.

If she believes that and can act upon it, given her obvious keen intellect and broad understanding of the law, then she is qualified, in my opinion, to serve on the Supreme Court, whether I would have chosen her or not; and as I believe that is the job of the Senator -- not to oppose people you are politically opposed to, but to oppose those who are unfit for the job -- were I in the Senate, I would vote to approve Judge Sonia Sotomayor's nomination to the Supreme Court of the United States.

I realize this opinion isn't going to popular among many conservatives and Republicans. It's a good thing I don't care about that.