June 3, 2009
Epstein in Forbes
Not too often that one guy owns a big story, but Richard Epstein has published two columns on the nomination of Judge Sotomayor that have contained more fact and wisdom than the rest of the world put together.
The first one was pretty tough on Sotomayor and provided substantive reasons to oppose her nomination, beyond an eight year old academic speech.
Today's questions the tactics and ideas of Karl Rove's -- and conservatives in general -- opposition as he separates conservative versus libertarian opposition to the pick.
He even takes a whack at those (rhymes with eh, jay?) who believe in a Borkean standard of strict constructionism:
Accordingly, [The Founders] crafted our Constitution as a complex compromise. In one breath, they conferred extensive powers on federal government and recognized broad powers in the states. In the next, they imposed strong limitations on federal and state power, such as the Takings Clause, which states "nor shall private property be taken for public use without just compensation."These complex institutional arrangements raise insuperable difficulties for any simple program of strict construction that stresses the first point to the exclusion of the second. A faithful interpretation of those clauses that limit government power in broad terms--e.g. the Bill of Rights--cannot be read to hold that judicial review only comes into play in the most extreme cases.
Libertarians, says Epstein, needed activism in Kelo.
Superb. Hat-tip: Instapundit
Sotomayor cannot be considered relative to finding a more qualified constructionist as that is a given. It also is not in the offing.
First, Sotomayor will not be defeated because she is too liberal. If she is defeated, it will be because she becomes unacceptable to her own party (think Harriet Miers). The reasons for Dems to defeat her would likely be pluses in my column.
The bigger question regards who we would get instead if she were defeated. Rumor has it that she has relatively moderate views on abortion and property rights. That alone would put her ahead of Souter. Empathy when rendering decisions is not exactly new to this Court, nor the Court over the past century. A thorough examination is in order, but it's entirely possible that a second nominee would be far worse, and the second nominee is almost undefeatable politically.
Posted by: Boulder Refugee at June 3, 2009 5:52 PMYou're singing my song, br. A) We can't lose, nobody is worse than Justice Souter B) We can't win; there's no votes to stop this "historic" nomination.
I'll not join you on Judge Sotomayor's being moderate on property rights. In Didden v. Village of Port Chester she shows an expansive view of the Takings Clause that would make Justice Souter blush.
Even without a serious shot at stopping the nominee, put me down with those who feel we could sharpen and portray a serious opposition to "trial by empathy" and that that is a pretty good use of time.
My final silver lining: I hope that she is not a jurisprudential star that can pull the court farther to the left than her own vote. Better to get a Democrat Harriet Meiers than a Justice Brennen, Douglas (wasn't he that guy in "green Acres?") or Frankfurter.
Posted by: jk at June 3, 2009 6:29 PMDon't get me started on her ruling against Didden. Port Chester isn't next to me, but it's in my county.
For such rulings, judges should be tarred and feathered, then expatriated over the Pacific at 40,000 feet without a parachute.
Posted by: Perry Eidelbus at June 4, 2009 9:50 AM | What do you think? [3]