Last summer’s hearings in the Senate Judiciary Committee on the nomination of now-Justice Sonia Sotomayor to the Supreme Court were, as such hearings (unfortunately) now tend to be, unenlightening. Those who hoped the occasion would highlight and sharpen the terms of our constitutional debates, educate the public about our legal traditions, or simply entertain could only have been disappointed.
The senators, by and large, recited interest-group-composed sound bites packaged in the form of questions; the nominee, in disciplined and familiar fashion, parried with poll-friendly talking points of her own. Republicans fretted over the remote possibility that Sotomayor thinks “wise Latina” judges are preferable to white male ones; Democratic senators who just a few years ago sniffed at Chief Justice John Roberts’s comparison of judges to umpires swooned over her embrace of “judicial restraint” and her recitation of the mantra that “judges apply the law.”
What does it mean, though, to “apply” the law? How should a conscientious, careful judge go about the task of identifying—or, perhaps, creating—that which is to be applied? Does it matter that the “law” in question is our Constitution, or that the judge applying it is unelected, or that its application sometimes involves the invalidation of other, duly enacted laws?
Questions like these are difficult and important but the recent hearings did little to help us answer them. They are also both perennial and...
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About the Author
Richard W. Garnett is professor of law and associate dean of the University of Notre Dame Law School.