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McConnell vs. Dworkin On Sotomayor And “Fidelity to Law”

Publication Date: 
September 11, 2009
Source: 
Bench Memos -- National Review Online Blog
Author: 
Ed Whelan

Professor Michael McConnell, a leading scholar in constitutional law and former judge on the U.S. Court of Appeals for the Tenth Circuit, discusses Justice Sotomayor’s "fidelity to the law":

Two new essays by leading legal academics—a conservative and a liberal—nicely frame the debate over Justice Sotomayor’s confirmation testimony and President Obama’s “empathy” standard for selecting Supreme Court justices.

Let’s start with the liberal, NYU law professor Ronald Dworkin. In an essay in the New York Review of Books, Dworkin observes that Sotomayor’s confirmation hearing “could … have been a particularly valuable opportunity to explain the complexity of constitutional issues to the public.” But, alas, Sotomayor “destroyed any possibility of that benefit” by her repeated insistence that “her constitutional philosophy is very simple: fidelity to the law.” ...

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Stanford law professor (and former Tenth Circuit judge) Michael W. McConnell offers a very different take in the course of his essay in the October 2009 issue of First Things reviewing Philip Hamburger’s outstanding book Law and Judicial Duty. (That essay isn’t online yet, and probably won’t be online for a while, but if you’re not a First Things subscriber, you should be.) McConnell properly agrees with Dworkin that Sotomayor’s professed “fidelity to the law” is, as he puts it, “more platitude than commitment” and wishes that senators had asked Sotomayor “why a judge should not decide hard cases based on her own moral judgment.” But, unlike Dworkin, McConnell believes that question has a compelling answer, an answer rooted, as Hamburger’s book shows, in the “traditional American commitment to the rule of law” and in “an ideal of judging as old as the republic.”

According to McConnell, “No one at the founding”—nor, I think it’s safe to impute to him, in the post-Civil War, and post-Dred Scott, era, in which the Fourteenth Amendment was adopted—“appeared to take the now popular academic view that the Constitution was deliberately framed in heroic generalities precisely to give federal judges a wider scope for discretion”:

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Regular Bench Memos readers won’t be surprised to learn that I think that McConnell has it exactly right.