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.