These hearings are a joke. You have a group of senators and "witnesses" who often preface their comments by saying, "I don't know much about the legal details in such situations, but . . ." You have court appointees who know what to say beforehand: don't comment on abortion one way or the other, don't play up one's true position on "strict construction," steer the middle road, don't get worked up, etc.

It's a stupid game. The senators try to get the appointee to lose his/her cool, or they wait out the clock, hoping the media dig up some dirt on the appointee. The appointee also waits out the clock, often because any real debate on the issues would be misconstrued by media that hate sophisticated or complicated arguments and leaders who admit they are uninformed.

So I don't see Sotomayor as even renouncing her ideas about identity politics. She's just playing a game. In this situation, there's really no room for her to explain her ideas carefully. I mean, the same party that extolled Sarah Palin's experiences as a mother and wife as grounds for election to the presidency are quibbling with Sotomayor for suggesting that there are experiences one might have as a Latina that might make for more informed decisions in certain situations.

My problem with this entire argument -- that being in the Marines or being a mother or being Latina gives one privileged experience -- is that the speakers never spell out exactly what privileged experience they've gathered. What does being a POW have to do with making decisions about taxation? What does changing diapers, or watching one's husband change diapers, have to do with the State of the Union address?

But so much of this has to do with the American fear of a true meritocracy. Erin posted something on Palin that suggested that the left really despises her because her success suggests that one can succeed without the traditional markers of merit. Well, that's exactly how she chose to present herself, and it appeals to the people. Something similar is at work in Sotomayor's speeches: intimate, personal experience (or one's personal experience as a member of a group) trumps knowledge or training. Identity politics is just another jive form of populism.

""Original intent" is a much more problematic concept than its acolytes admit."

It doesn't have any acolytes that actually know what they're talking about. "Original intent" is what the legal academic left calls its opponents adherents of, when judges like Scalia, Thomas, Roberts and Alito more accurately would be described (and in some cases have described themselves) as looking for original MEANING, i.e., if the words can mean something other than what they were promulgated to mean, what is the point in have written constitutions or statutes at all? Any other legal theory accepts judges behaving as legislators, which is simply inconsistent with the entire theory of self-government that the US Constitution rests upon for its legitimacy.

"the same party that extolled Sarah Palin's experiences as a mother and wife as grounds for election to the presidency"

?

I've seen Palin's experiences as a mother and wife used to explain who she is. I've seen her experiences as governor of Alaska used as grounds for election to the vice presidency. Is this what you mean?

The problem with these hearings, as with most of those that have occurred in the past quarter century, is that we expect our justices to live up to an obvious lie. We want them to tell us that they will be impartial arbiters ("calling balls and strikes," as John Roberts so disingenuously put it) of a document that is, in many places, intentionally vague. The Constitution--and especially the Bill of Rights--was, despite James Madison's dominant role, written by committee, and anyone seeking to discern the "intent of the Framers" must first ask, "Which one?"

Since very few of the important constitutional debates deal with words that have unambiguous meaning, we must necessarily depend on the wisdom, discretion, and--yes--empathy of those we select to the High Court. Now obviously, we don't want an unelected nine-member legislature that simply uses their power to write and rewrite laws willy nilly. For that reason, we expect judges to respect legal precedent and leave "settled law" settled, except in the most egregious of instances (e.g., slavery, racial segregation, etc.).

Otherwise, it's naive to think that putting a "wise [liberal] Latina" on Court won't tweak constitutional interpretation a little or a lot. It's equally naive, unfortunately, to expect Sonia Sotomayor to admit this during her confirmation hearings any more that we would have expected Roberts to warn us that he would, as Chief Justice, invariably side with, as the New Yorker recently reported, "the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." Had he done so, he would not have been confirmed by the Senate.

Thus, the fact that Sotomayor is being, in a sense, dishonest on the stand does not really represent a flaw in her character as much as a flaw in the confirmation process and a flaw in the way we rationalize the Court.

As for activism, it seems to have both a liberal and a conservative bent. The most activist cases in my memory would be Roe v. Wade (and Griswold, which preceded, but which is before my time), Bush v. Gore (the most indefensible and activist decision of my lifetime, if not ever), and the DC gun control case (which swept away 100+ years of precedent to find a constitutional right to personal gun ownership which no previous Court had ever noticed). I'm not saying that any of these were bad decisions in public policy terms; but they were unquestionably activist in terms of their willingness to impose the will of the Court's majority without regard for precedent or remotely clear constitutional guidance.

ScottF..."The Constitution--and especially the Bill of Rights--was, despite James Madison's dominant role, written by committee, and anyone seeking to discern the "intent of the Framers" must first ask, "Which one?""

Many contracts were basically written by committee: indeed, I'd say that *most* corporate contracts were written by committees, and often very loosely-defined ones. Does this justify courts substituting making a weaker effort to follow the intent of these contracts than they would that of a contract written by a single individual.

David Foster--I don't think you can look at the Bill of Rights as a contract. Many, if not most, of its provisions are intentionally vague (e.g., "cruel and unusual punishment"). There are, of course, cases in which contracts turn out to contain vague language, too, but that result is rarely intentional.

It's probably better to think of the Constitution as a mission statement, a list of guiding principles to be interpreted by the standards of each succeeding generation. Sure, there are a few unambiguous provisions (Congress can't create a state religion; the government can't force you to quarter soldiers during peacetime), but they are clearly the exception. Even some rights that are conveyed in absolute terms must still be subject to judicial discretion: e.g., we sensibly place time, place, and manner restrictions on speech (crowded theaters and all that) even though the Constitution explicitly states that Congress shall make NO law abridging that freedom.

Returning to the "wise Latina" comment, it seems to me that it is precisely because our fundamental law remains so ambiguous that we want real diversity among those who "call the balls and strikes". People of different races, genders, and ethnic backgrounds do experience life in America differently, and it is silly to pretend otherwise.

Sandra Day O'Connor, a strong conservative in every other way, notably parted company with her right-wing colleagues on a number of cases involving women's rights. Was her decision making influenced by the fact that, after finishing second in her class at Stanford Law, no prestigious legal firm would hire her? Probably. Anything wrong with that? Nope. Indeed, that perspective--the visceral, first-hand knowledge of the consequences of gender discrimination--was badly needed on the Court in 1981.

(And don't for a moment believe that the jurisprudence of Roberts, Scalia, Alito, and Kennedy is not at least partially informed by their experiences and upbringing as white Catholic males.)

Obviously, this sort of thing can go too far. Nobody wants Ward Churchill or Pat Buchanan on the Supreme Court. But there is nothing about Sonia Sotomayor's overall record (including her "wise Latina" remark) that suggests she's some kind of single-minded ethnic crusader. Indeed, even her Ricci decision, whatever one thinks of it, was firmly grounded in judicial precedent.

"...even her Ricci decision, whatever one thinks of it, was firmly grounded in judicial precedent."

WTF? How can a summary order providing no reasons whatsoever be grounded in anything? Judge Cabranes rightfully ripped her a new one in his dissent from the denial of en banc rehearing. Justifying what the three-judge panel did in an actual opinion would have been debatable, but what they did was fundamentally dishonest. They tried to hide the ball.

"Original intent" is what the legal academic left calls its opponents adherents of...

Well, maybe. But even the Wall Street Journal has used the term to describe the jurisprudence of Scalia et al. See here.

original MEANING, i.e., if the words can mean something other than what they were promulgated to mean, what is the point in have written constitutions or statutes at all?

Sounds plausible--but what if certain words and phrases (say, "to bear arms") found their way into the Constitution because they meant one thing to one conventioneer and another thing to some other conventioneer? This is sometimes the way compromises are reached. You know how it goes: the discussion over the exact wording of some proposal has dragged on for hours or even days, it's summer and there's no air conditioning, there's no hope of any genuine compromise in sight, so finally you just finesse the disputed point by using a word or phrase ambiguous enough to be acceptable to all concerned. Of course in doing so you're just kicking the can down the road, leaving it to a future Supreme Court to settle on the meaning, but at least you get to go home and have dinner. The point is that in a case like this, "original meaning" cannot help that future Supreme Court in the least. And searching for something that never existed strikes me as pretty silly.

ScottF..experiences of life...introverts have very different life experience from extroverts. Artists have different experiences than do mechanical engineers, highly religious people perceive life in very different ways than do the irreligious, people who are good at abstractions have different experiences, perceptions, and prospects than do people whose orientation is more concrete. What is the justification for the "progressive" project of trying to compress all the vast dimensions of humanity into the holy trinity of race, gender, and ethnicity?

I suspect the reason for the obsessive focus on these factors is that it plays into the "physics envy" of many sociologists, in that these factors are easily measurable...and also plays to the interest of politicians in building voting blocks.

When I read the comments on this blog, I weep at the sheer ideological blindness of the political left.