The Federalist Society

Debate Comments


I think everyone will agree that the nomination hearings--no matter who the nominee, or what their judicial philosophy--has devolved into nothing more than a dog and pony show. Senators get a chance to make the political points they want with the groups they want to impress, and the nominee makes every effort to get through the process without having a "meltdown" as Sen. Graham put it. There is no real discussion or debate on judicial philosophy. Indeed why should there be? The nomination hearing is a modern invention. As long as the nominee is qualified, as Sotomayor clear is base on her experience and record, why should she be required to say or prove anything else?

From a Constitutional law standpoint, the thing I find most annoying is that conservatives protray themselves as defenders of the true, original meaning of the Constiution, while accusing liberals of being so result oriented that they are willing to twist the Constitution to suit their whims. In fact, it is often the exact opposite. Take the excursion this week into the debate over incorporation of the 2nd Amendment. However you look at it, from the stanpoint of originalism or prescedent or any other perspective, there is no good argument for 2nd Amendment incorporation. Although there is only one case directly on point, there is a whole line of incorporation decisions which by now should make it a settled question that it is not incorporated. But conservatives are in love with guns, with gun ownership, and gun possession, so they have now siezed upon this as a new flag to run up the conservative pole, even if there no sound basis for this argument. Certainly not a non-activist or originalist basis for the claim. This, not J. Sotomayor's testimony, is intellectual dishonesty.


Thanks for this debate. In spite of your clear leanings, it seems that you are all actually in at least a sort of agreement.

A) the executors of the process are lacking, and b) Sotomayor herself is at least somewhat suspect, either for being boring/lackluster or just plain dishonest.

Frankly, either opinion is a welcome respite from the standard media tripe about this.

I used to work for an attorney of note, and I really appreciate each of you putting in the time to make some sense.

I know how busy it can be, and it's nice to hear well-thought opinions from people who know more than I do.

[Lester Jackson, Ph.D.]

I was very disappointed that the Sotomayor hearings and debates almost totally ignored how activist justices have eviscerated the death penalty. There are few areas with so many concrete and easy-to-understand examples of how activism has harmed ordinary law-abiding citizens. I have written a detailed list of questions* based on actual specific egregious Supreme Court decisions that would shock a substantial majority if ever adequately reported (or even mentioned) by the media. No one should expect the questions to be answered honestly by any activist nominee. The main point is that they be asked repeatedly, now and in the future. Just doing so would raise public awareness of the damage caused by activist justices (including more murder victims).

Although the hearings are over, the confirmation vote is not. Moreover, there will be future nominees and Senate elections. Also, the Sotomayor debate should not end with her confirmation. Senators who approve her should have to answer these questions now and when they next face the voters, especially if, as is probable, she joins the activist capital punishment abolition bloc. (Those who think this less likely because she was once a prosecutor should remember that, e.g., Souter and Warren were ex-prosecutors.)

It is not enough that activist nominees pretend at hearings to be paragons of restraint. That means nothing when they show their true colors after confirmation. They must be kept off the courts. In the end, if opposition to judicial activism is ever going to succeed, it must do so at the ballot box by (1) presenting the issue in a way voters can understand and identify with; and (2) holding Senators accountable for the predictable activism of justices and circuit judges they vote to confirm.

* URL:

The Federalist Society