Georgetown Law Professor Randy E. Barnett today pens an item for the WSJ. His subject? The now-underway Senate Judiciary hearings to confirm, or reject, the tapping of Second Circuit Judge Sonia Sotomayor for the U.S. Supreme Court.
Blawgletter fancies that the choice might've made Senator Al Franken wince — even when he wrote for Harvard Lampoon.
Why would a Serious Legal Scholar like REB choose funny to deal with a matter that seems to call for dignity?
Don't get Blawgletter wrong. We like to chuckle as much as the next chucklehead. Nor do we mind making sport of people who affect Excessive Gravity or display Pedantic Certitude.
No. But we do wonder if the lightness of the good pedagogue's treatment tells us how much weight we should give his Probing Analysis.
We must answer yes. R. E. Barnett opts to educate us not by Persuasive Analysis of the True Facts but by constructing a Straw Woman and then ripping her to shreds.
He starts by giving us a history lesson:
In the 1930s, academics developed a philosophy they called "legal realism" to undercut judicial resistance to "progressive" statutes such as laws restricting the hours a baker or a woman could work. Legal realism elevated just results over the rule of law. It saw analysis of "the law" as an after-the-fact rationalization that allowed reactionary judges to conceal their empathy for the oppressed. Because legal realists believed judges inevitably made law when they ruled, they thought judges should decide cases with progressive ends in mind.
Pardon us, but we don't recall legal realism as a New Deal creation, much less one that aimed to furnish cover for "reactionary judges" who deep inside wanted to practice their love on the little people. Au contraire. Didn't Oliver Wendell Holmes give it a big push with The Common Law in 1909 or so? And didn't it mainly work to expose the biases of reactionary judges against poor folks?
But that doesn't bother us so much. Prof. Barnett goes on to say Senators oughtn't concern themselves with asking Judge Sotomayor about phony-baloney issues like "stare decisis" or "judicial activism". He prefers something totally different, he says:
Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms?
Aha! Don't ask Her Honor how she would've decided District of Columbia v. Heller — in which a 5-4 Court held that the second amendment does indeed protect an individual right to arms. Instead inquire whether the second amendment protects an individual right to arms! And rather than probe her thoughts on whether the Heller decision applies to state governments, demand an answer to whether the second amendment does.
Completely different. Completely different, we tells ya!