In a column in today's Examiner, I argue that the rancor concerning judicial confirmations today stems in part from the legal academy's efforts to deconstruct the law itself, through such movements as legal realism and critical legal studies. Each school of thought does contain truths, and some areas of law--including tort law and antitrust law--are essentially judge-made, and call out for policy judgment.
But the end result of deconstructing legal formalism is legal-process-as-politics--an express tenet of some strands of critical-legal thought--in which the judiciary is viewed as essentially indistinguishable from the political branches. When legality itself is reduced to no more than policy outcomes, the end result is a less-legitimate judiciary, and a highly charged, political confirmation process.
All of which makes Sonia Sotomayor's testimony so striking. However much Sotomayor's words before the Senate Judiciary Committee may not match some of her previous extra-judicial writings and speeches, her testimony has been a full-throated endorsement of legal formalism, as I note over at NRO. Sotomayor has (a) backed away from her earlier statements suggesting not only that race and gender matter in determining legal outcomes but that it's not a bad thing; (b) expressly repudiated President Obama's "empathy" standard as even being necessary in any cases; and (c) rejected in essence the whole project of transnational legal process, claiming that American law is determined by American traditions apart from obvious exceptions like treaties and contracts with alternate choice-of-law terms.
It's hardly surprising that at least one Crit has thrown up his arms at the spectacle, and led Randy Barnett (and myself) to lift our eyebrows, given an almost indisputable acceptance that the law "is a whole lot more underdeterminate than Judge Sotomayor made it out to be."
The take-aways, as I see it? First, the President's advisors who prepped Sotomayor view legal formalism--however discredited in the academy--as the mainstream public view of the law. Second, Sotomayor's orthodox statements of law constrain somewhat the President's next Supreme Court appointment, since they could "be used pretty powerfully to undercut the legitimacy of a full-blown transnationalist like Harold Koh, or anyone firmly rooted in the Critical Legal Studies school."