Tuesday, July 14

Where's the beef?

Georgetown University Law Professor (libertarian, and Cal City boy!) Randy Barnett takes an educated look at the Sotomayor hearings thus far, and offers his opinion on the Volokh blog:

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I just listened to an exchange on the same topic with Senator Russ Feingold, which left me with 2 impressions. First, Feingold was much more articulate about the constitutional questions than was Orren Hatch. And, second, Sotomayor is giving entirely nonanswer answers to every substantive question she is asked.
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SOTOMAYOR: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform -- as I said, I've hesitant of prejudging and saying they will or won't because that will be what the parties are going to be arguing in the litigation. But it is...

FEINGOLD: Well...

SOTOMAYOR: I'm sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has taken -- has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court's decision how it looks at a new challenge to a state regulation.

The last part of her answer may be my favorite response so far in the hearing. To this point, it is impossible to tell from her responses whether she knows anything about constitutional law OR whether she simply does not want to offer any opinions that could possibly be criticized. I do not recall a confirmation hearings in which so little of substance is revealed by a nominee.