On the first day of her confirmation hearings, Judge Sonia Sotomayor addressed the Senate Judiciary Committee and explained her approach to judging. "In the past month, many senators have asked me about my judicial philosophy," she said. "It is simple: fidelity to the law. The task of a judge is not to make law - it is to apply the law."
It was, as Yogi Berra might have said, déjà vu all over again. John Roberts told the Senate that he was just an umpire calling balls and strikes. Sonia Sotomayor said that she was just applying the law to the facts. Really now; give us a break! Yes, judges should be faithful to the law. Problem is, the law is often unclear-especially in the Supreme Court, which accepts cases only if they pose novel legal issues.
All the justices on the Supreme Court are doing their level best to be faithful to the law, but they reach very different conclusions about what it requires. Isn't that why we watch the Supreme Court confirmation hearings? If judges were just umpires, if their judicial philosophies amounted to nothing more than ‘fidelity to law,' neither we nor the senators would care so much about who was appointed.
So why can't we have a more honest public conversation about what makes for a good Supreme Court justice? That question is the starting point for The Next Justice: Repairing the Supreme Court Appointments Process. Its goal is to provide a better description of what Supreme Court justices actually do and thereby to improve the national argument about who should be selected.