Posted by Randy Barnett:
Mike Seidman on Sotomayor:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247620080
On the Federalist Society Online Debate on the Sotomayor hearings
(click [1]here and scroll down), my Georgetown Law colleague Mike
Seidman--a cofounder and intellectual leader of the Critical Legal
Studies movement in the 1980s--is brutally candid in his opinion of
Judge Sotomayor's testimony today:
Speaking only for myself (I guess that's obvious), I was completely
disgusted by Judge Sotomayor's testimony today. If she was not
perjuring herself, she is intellectually unqualified to be on the
Supreme Court. If she was perjuring herself, she is morally
unqualified. How could someone who has been on the bench for
seventeen years possibly believe that judging in hard cases
involves no more than applying the law to the facts? First year law
students understand within a month that many areas of the law are
open textured and indeterminate�that the legal material frequently
(actually, I would say always) must be supplemented by contestable
presuppositions, empirical assumptions, and moral judgments. To
claim otherwise�to claim that fidelity to uncontested legal
principles dictates results�is to claim that whenever Justices
disagree among themselves, someone is either a fool or acting in
bad faith. What does it say about our legal system that in order to
get confirmed Judge Sotomayor must tell the lies that she told
today? That judges and justices must live these lies throughout
their professional carers?
Perhaps Justice Sotomayor should be excused because our official
ideology about judging is so degraded that she would sacrifice a
position on the Supreme Court if she told the truth. Legal
academics who defend what she did today have no such excuse. They
should be ashamed of themselves.
While I do not share Mike's view of law as radically indeterminate, I
sure think it is a whole lot more underdeterminate than Judge
Sotomayor made it out to be in her testimony today. Mike deserves much
credit for speaking his mind about a continued refrain that really
grated on me as well. One wonders what other law professors privately
think about today's performance.
References
1. http://www.fed-soc.org/debates/dbtid.30/default.asp
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