Posted by Eugene Volokh:
More from Richard Epstein on the Sotomayor Nomination,
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243966380
in [1]his Forbes column -- this time criticizing the conservative
judicial minimalist case against her:
Alas, the inescapable truth is that constitutional law contains no
magic bullet that condemns judicial activism and lauds judicial
restraint. The public outcry over the Supreme Court's rendering of
the "public use" language in Kelo v. City of New London was for its
failure to use plain constitutional language to stop the egregious
decision of New London to condemn Ms. Kelo's land literally for no
reason at all. If that's judicial activism, then words have lost
all meaning.
These observations have clear implications for the ongoing debate
over the Sotomayor nomination. However unhappy conservatives and
libertarians might be with her nomination, they won't put a dent in
her confirmation prospects in the Senate and they won't alter the
terms of the political debate by waving the tattered flags of
judicial activism and strict construction. There are no
intellectual shortcuts.
Her opponents have to engage in a more fine-grained inquiry that
shows why the judges, like Sotomayor, who work in the progressive
tradition embrace a judicial philosophy that leads them to make
both kinds of constitutional errors. Intervening in cases where
they should stay out--Roe v. Wade comes to mind--and not
intervening where they ought to intervene, as in Kelo and Didden.
To this libertarian, Karl Rove's broadside won't get this campaign
off to an auspicious start.
References
1.
http://www.forbes.com/2009/06/01/sonia-sotomayor-nomination-opinions-columnists-conservatives.html
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