... I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?Well, yes, of course, but do we really want to call this lying? Don't all the nominees lie that way? Sotomayor is laying it on particularly thick. And at some point, we do need to acknowledge the disgust — like Seidman — or at least — this would be more my speed — laugh and roll your eyes.
John Roberts said essentially the same sort of things about judging, but the humble judge pose is perhaps less strained coming from a conservative. Now, I do think Sotomayor and her advisers did study the John Roberts confirmation performance. This — I think they decided — is the ideal. So be like that. But it is more absurd coming from a judge who, we think, is going to do more expansive things with the clauses of the Constitution. And there's something clunky and obvious about Sotomayor's John Roberts routine. Acting like Roberts came more naturally to Roberts. But let's not reject the woman for bad acting.