From the N.Y. Review (via How Appealing):

It may be too late to save any future Senate hearings on Supreme Court nominations from farce, as the Judge Sonia Sotomayor hearings quickly became. She is an excellently qualified nominee and will make a careful, thorough justice.^[1] She demonstrated her clarity and technical skill in correcting several senators’ misunderstandings of constitutional issues and explaining the facts of a large number of her own lower court and recent Supreme Court decisions to them. Her personal history is remarkable—from a poor South Bronx family she became a Princeton summa graduate and an editor of TheYale Law Journal. Her long judicial and extrajudicial record suggests that she is markedly less driven by ideology and more respectful of technical legal argument than Chief Justice John Roberts and Justice Samuel Alito seemed before their nominations and have shown themselves to be once on the Court.

Her hearings could therefore have been a particularly valuable opportunity to explain the complexity of constitutional issues to the public and thus improve public understanding of this crucially important aspect of our government. But she destroyed any possibility of that benefit in her opening statement when she proclaimed, and repeated at every opportunity throughout the hearings, that her constitutional philosophy is very simple: fidelity to the law. That empty statement perpetuated the silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution without making controversial judgments of political morality in the light of his or her own political principles. Fidelity to law, as such, cannot be a constitutional philosophy because a judge needs a constitutional philosophy to decide what the law is.

The constitutional provisions that provoke the most controversial Supreme Court decisions are drafted in abstract moral language: the Constitution refers to “due process of law,” “equal protection of the laws,” “cruel and unusual” punishment, the “right” of free speech, the “free” exercise of religion, and the “right” to “bear arms,” for example. Some lawyers, including Justices Antonin Scalia and Clarence Thomas, insist that we can interpret these clauses and apply them to concrete contemporary cases by asking a historical question: What did those who wrote that language, and the citizens they spoke to, assume the clauses meant? But that conservative theory can itself be defended only by appealing to highly controversial political principles about the nature of democracy and about the role of intention in constitutional interpretation. The theory is unhelpful anyway because the authors of the abstract clauses almost certainly intended to say what their words naturally mean: they meant to forbid any law that denies equal status to all citizens, which is very different from forbidding any law they themselves thought denies equal status.

The clauses, read literally, therefore require interpreters to develop what they believe to be the best theory of equal citizenship, which is not necessarily the theory of the framers. The same Congress that approved the equal protection clause in 1868 itself segregated the public schools of the District of Columbia, but no one now supposes that the equal protection clause allows segregation.

The Supreme Court’s past decisions do act as precedents that limit contemporary interpretation. But these past decisions often themselves require interpretation. In 1937 Justice Benjamin Cardozo laid down a test for interpreting the due process clause: he said it protects those rights that are “of the very essence of a scheme of ordered liberty. To abolish them is…to violate a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'”^[2] What is now the leading precedent on abortion rights declares that constraints on abortion are unconstitutional if they impose an “undue burden” on pregnant women.^[3] Lawyers and judges disagree markedly about what is essential to ordered liberty, how American traditions and conscience are to be understood, and what constraints on abortion are undue. And justices may ignore past decisions, openly or covertly, as Roberts and Alito, who themselves promised fidelity to the law, have done brazenly since their confirmations.^[4]

So a genuine constitutional philosophy must be a system of different kinds of political principle that guide a judge in interpreting the abstract constitutional clauses and the past decisions of other judges. It must include some at least rough theory about the best conception of democracy, including the best understanding of the individual rights that must be secured by law, as a matter of justice, if government by majority rule is to be fair. I emphasize that these are principles held as a matter of moral conviction; they are not prejudices of political partisanship or sympathy for or identification with any class or racial or ethnic group. The difference is crucial: a judge will try to justify his principles by some more general theory of political morality and he will respect their demands even when they cut against his partisan preferences or loyalties. The difference was made stark by the Court’s shameful decision in Bush v.Gore, when five conservative justices declared George W. Bush president on grounds that they had themselves rejected in past cases and that they conceded would have no application in future ones.^[5]

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