But one of the more interesting reactions to Day 2 of the hearings is from those on the legal left who are frustrated by Sotomayor's repetition of what they believe to be inaccurate conservative memes about the judicial role. As I blogged earlier this week, these folks - and most legal academics - hate Chief Justice Roberts' umpire analogy. I am not so negative on it, although even I think it is better when modified as I suggested in my post.
But Judge Sotomayor has gone all in on the "nothing but the law" approach to the extent that her testimony is difficult to reconcile with her earlier comments on the indeterminancy of the law and the role of multiple perspectives in judging.
My own view is summed up by Professor Randy Barnett. I do not believe that the law is radically indeterminate, but it is more underdetermined than Judge Sotomayor as witness has allowed. I think that there are ways to deal with undetermined law that are more consistent with the rule of law, separation of powers and democratic legitimacy than others. For example, I am not persuaded to adopt any form of epistemological privilege for the dispossessed.
But others - maybe even Judge Sotomayor (based on her consistent remarks over the years) - may disagree and some of those who do are not happy with her performance. Professor Michael Seidman (a man of the left), blogging at the Federalist Society's website, says it this way:
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.
H/T: Randy Barnett and Jonathan Adler