Randy Barnett Revisits Rosen

Randy Barnett revisits Jeffrey Rosen’s warnings about Judge Sotomayor and comments “[w]hen Rosen published his critique, I knew very little about Sotomayor. After forcing myself to watch much of the hearings, I wonder if those who criticized him then are having any second thoughts today.”

I personally am having second thoughts.  Not about Sotomayor.  She’s doing a fairly good job of playing error-free ball.  That means, in this context, biting her tongue, submerging her ego, and avoiding saying anything substantive.  That’s especially true for Sotomayor (as opposed to other recent nominees) because the President’s party is entirely in control of the Senate.  The likelihood of her not being confirmed has always been effectively zero.  There’s therefore nothing to be gained by being vivid, interesting, or even hyper-articulate.  A gaffe at such an event is when a Senator, or a nominee, says something illuminating.  Her job is to be boring.  So she is.  Their job is to get onto their local news.  So they expound.

But I do think that the legal blogosphere comes out of these hearings looking pretty silly and oddly obsessed with an institution that decides almost no cases that matter to the political, economic or cultural life of the country.   Even were the Supreme Court to be as practically significant as, say, the House’s Ways and Means committee (a proposition which is arguable), the devotion of so many resources to the intense study of a single confirmation hearing would still be odd.  The goal of such hearings is obviously to allow Senators to talk their political bases about why they ought to be reelected while pretending to talk to the nominee about why she ought to be confirmed.  That’s why, for example, we’ve got witnesses on constitutional property rights, an area of law which has – to my mind – disproportionate political salience when you consider the heavy governmental intrusions contemplated by the common law tort and contract regime, never mentioned in the hearings.

I get that it’s a slow news week, or perhaps even month, but the attention that law professors, lawyers and journalists have paid to this hearing is unwarranted, especially when other far more interesting problems of legal reform and regulation are pressing.  Worse, it encourages the view that the Justices are our platonic guardians, who must be blessed before they ascend into the heavens.

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3 Responses

  1. Frank Pasquale says:

    Terrific points all. I was recently at a law faculty lunch (not at Seton Hall), and all the buzz was about Sotomayor (and the Rosen article). A wise admin law prof there said “What’s with all this fuss? It’s not like this is something as important as the head of EPA.”

    I am still mystified as to why admin law is not on the bar, and why it is not a required course at most law schools.

  2. “Worse, it encourages the view that the Justices are our platonic guardians, who must be blessed before they ascend into the heavens.”

    Too late – recall Madame Speaker’s response to Kelo: “This is almost as if God has spoken.”

    …and I agree with Prof. Pasquale as to the importance of admin law. I suspect we part company, though, when I lament that importance.

  3. Oh, come on, the Court is, as a practical matter, precisely as significant as the House Ways and Means committee, because it’s the Court which has allowed that committee to exercise as much power as it does. Without the Court signing of on the uspurpations of the New Deal, most people wouldn’t have to care one bit who was on that committee.

    If I give an H bomb to the village idiot, I’m precisely as destructive as he is, even if he’s the one pressing the button.