Comments on: Sotomayor: Court Jester or Judge as King?

By: Confirmation Hearings: Ten Questions for Sonia Sotomayor | The National Scene

Sun, 12 Jul 2009 23:26:05 +0000

[...] [1]Deborah O’Malley, “Sotomayor: Court Jester or Judge as King?” The Foundry, May 29, 2009, at http://www.foundry.org/2009/05/29/sotomayor -court-jester-or-judge-as-king/. [...]

By: Mike, Elko, NV

Mike, Elko, NV — Thu, 04 Jun 2009 00:35:58 +0000

The Founding Fathers foresaw such a situation, debated it, and concluded judges should not have the power. Their debate was whether, or not, the judiciary ought to be part of the executive as a check against legislative encroachment.

From Madison's notes on July 21st in the Constitutional Convention, Mr. Wilson argues "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the Judges in refusing them … Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of law, and of counteracting, …" Clearly this is an argument for an expansive judicial review of the sort Sotomayor seems to advocate.

Mr. Gorham in response, according to Madison's notes replied "As Judgeses they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures."

In a 20 March 1788 paper, Brutus argued that the Supreme Court would be "exalted above all other powers in the government, and subject to no control." This is because judges could construct the constitution according to their whims and there was nothing to be done about it. His solution, interestingly, was to leave construction to the legislature who had to answer to voters.

In hindsight Brutus was very wise.

By: Barb -mn

Barb -mn — Fri, 29 May 2009 22:42:56 +0000

If possible, please research specific American laws that have to or have been altered. Unless these alterations of laws have equal benefit to all and not made with bias of race, creed or culture, it is a violation to the constitution.

By: jr., Michigan

jr., Michigan — Fri, 29 May 2009 18:58:39 +0000

i pick court jester. or, how about court psychopath?

By: Jim in Minneapolis

Jim in Minneapolis — Fri, 29 May 2009 12:36:51 +0000

I am no expert on Judge Sotomayor's philosophy of interpretation and jurisprudence, but, at least within the quoted excerpts you provide, Sotomayor says nothing that a natural law originalist could not say and mean. Certainly legal concepts can be more precise than the language we use to communicate them, so that two people can use the same words to communicate different sentiments which have subtle but important distinctions, but nothing in the post attempts to show that this is the case in with Sotomayor's words.

And certainly the words themselves are not ones deserving of condemnation, for any conservative with a proper understanding of the processes and history of law could agree with them on their face.