Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, May 28, 2009

Michael Perry v. Steve Shiffrin? And other Judge Sotomayor-related thoughts

Gather round!  Steve Shiffrin writes, here, that "activism" is "just an ideological term employed by conservatives, and it should be understood as such."  (In recent years, actually, liberals have taken to the term, too.)  Michael Perry's new book, though, Constitutional Rights, Moral Controversy, and the Supreme Court, defends a Thayerian (i.e., highly deferential) approach to judicial review, an approach that, presumably, contrasts (and conflicts) with other, less deferential ("activist"?) approaches.  Michael, what say you?  Is "activism" (for all its misuse) and entirely unhelpful term in constitutional-intepretation debates?

On the question of Judge Sotomayor's views regarding abortion, which several of us have raised:  I cannot imagine that anyone really doubts -- more particularly, does anyone think that President Obama has any doubts? -- that Justice Sotomayor would vote to retain the Roe / Casey regime, and would apply that regime's doctrine in such a way as to invalidate many restrictions on abortion that (i) popular opinion would support and that (ii) the "conservative" Justices would probably uphold.  Elections have consequences, obviously.  That said, she does not appear, based on the evidence so far, to be a zealot on the matter (I have noted elsewhere that aspects of her religious-freedom work is encouraging to me), and one could see her selection as confirming, yet again, President Obama's political skills (because the recent polls we have been discussing might indicate that a full-on, center-stage Judiciary-Committee-and-beyond fight about abortion might not, at this moment, be in the President's best interest).  

Eduardo's post (come home, Eduardo), to which Michael linked, is helpful and it reminded me, among other things, of how loathesome the attacks were (and continue to be) on Justice Thomas's (J.D. Yale) intelligence.  As Eduardo put it, the "racism" charge is "not a charge that [one should] throw around lightly, but in [that] case it may have some merit."

And, for what it's worth, I agree that among the worst possible things -- for those of us who would prefer more "conservative" policies and administrations -- about this nomination so far is the fact that people like Pat Buchanan are playing completely to type (and, of course, enjoying much press attention for doing so) by indulging their ugly and stupid anti-Latino biases.  I assume Eduardo does not think, though, that it is racist, or even inappropriate, to have questions, even doubts, about the ideas expressed in Judge Sotomayor's Berkley essay?

Finally, I cannot resist expressing some irritation at the suggestions -- not by Eduardo, but in some quarters -- that Judge Sotomayor is untouchable because she is Latina, or that Republicans raise questions at their peril, because Latinos will rightly resent anything short of a coronation. Miguel Estrada must be thinking, "if only that were true!"  As my colleague, Bill Kelley, explains here, questions are appropriate, even if the outcome is certain and even if the Republicans decide not to follow the Democrats' recent example (in the Alito and Roberts contexts) and not to vote against obviously well qualified nominees entirely for ideological reasons.


Garnett, Rick | Permalink

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