The Confirmation Hearings

I wanted to make two (well, maybe three) observations about the hearings for Judge Sotomayor. Contrary to some of the hand-wringing I’ve read about how these affairs are now a meaningless ritual, I think we learn quite a bit about what is on people’s minds with respect to constitutional doctrine.  For example, there were many questions about property rights (as others have noted), which is unusual as compared to prior hearings and suggests a heightened interest that might be reflected in the takings case that the Court will be hearing next term.

One thing that struck me was the consensus among the Senators about the incorporation of the Second Amendment.  Senators from both parties endorsed the idea.  Nobody rejected it.  That’s a pretty telling sign of where the political and legal culture is on that one.

The other point, which also came up in the Roberts and Alito hearings, involves the canonization of Justice Jackson’s concurring opinion in Youngstown.  Everyone, it seems, loves his analysis.  This raises an important question —  why did that happen?  There must be an interesting story there, and I’m going to start looking into that.

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4 Responses

  1. Quincy Q says:

    I think Sotomayor eventual confirmation will signal yet another new beginning for our country. Appointing her as a justice will not only improve the image of our country and justice system, but will also go a long way in also improving the general image of lawyers in this country.

  2. A.W. says:

    Sure, its all very insightful except for the part where she lied blatantly about her own words and the dems shamelessly smile and play along.

    I guess that is insightful in its own way.

    and improve the image of lawyers? we are placing a person on the bench who clearly does not believe in equal justice before the law. its hard to call that an improvement.

  3. Vladimir says:

    Gerard, on the canonization of Justice Jackson’s Youngstown concurrence — it’s because Americans of all political stripes loathe judicial formalism and love the free-wheeling, subjective, legal realist analysis Jackson advocates, particularly his embrace of judicial creativity and rejection of the idea that the Founders have anything relevant to say to us today.

    Oh wait… which is to say, you’re asking a really good question. (For what it’s worth, every time I teach it, I fall in love all over again — Jackson’s writing is a thing of beauty!)

  4. Bill Reynolds says:

    Vladimir hit it on Youngstown. No BS on precedent or original meaning; simply what makes sense in this scheme we have. Jackson was a wonderful writer. Compare Kennedy who tries oh so hard and never makes it.