Jeffrey Rosen gets it exactly right: “It’s too bad that neither Sotomayor nor any of the Senators felt at liberty to say what many scholars and court observers believe to be true: Justices often legislate from the bench, and sometimes that’s a good thing.”
This confirmation hearing has turned into a huge lost opportunity for liberals. She’ll definitely get the job, but the Republican senators have done a really good job of cornering her and forcing her to backtrack. This was a great chance for liberals to give a proper defence of judicial activism and of the role of judgment in interpreting the law; instead, she’s on record now endorsing a preposterous theory about the judge as an “umpire,” whose duty it is to simply follow and apply the law.
That’s a theory no legal scholar in the land endorses, not even the so-called “strict constructionists”; if it were even remotely true, not only would we not need a Supreme Court, we wouldn’t even need judges. The Dems will win this battle but the cost is high: They have conceded the strategic ground for the next fight to the Republicans.