Libertarians and Conservatives: Still Not Sitting in a Tree; Sotomayor Edition


Distinguished legal scholar Richard Epstein (read his Reason archive here), who has been making various libertarian critiques of Barack Obama's first nomination to the Supreme Court, has a Forbes column out about "the serious intellectual weakness in the conservative case against her confirmation." A snippet:

There is no disagreement from me that empathy is a poor guideline for constitutional decision making. Nor do I believe that our "malleable" Constitution should be the plaything of the justices. But it doesn't follow from these points that it's a cardinal judicial sin to upset federal or state legislation. Nor does some implicit, overarching judicial norm of "strict construction" condemn most forms of judicial intervention.

That narrow conception of the judicial role may be congenial to conservatives who think democratic outcomes almost always have greater legitimacy than judicial ones. As a libertarian, however, I do not share that judgment. The Founders well understood the risk of faction, which could allow simple majorities to restrict the liberties or confiscate the property of their political opponents. […]

However unhappy conservatives and libertarians might be with her nomination, they won't put a dent in her confirmation prospects in the Senate and they won't alter the terms of the political debate by waving the tattered flags of judicial activism and strict construction. There are no intellectual shortcuts.

Meanwhile, distinguished man about town and Reason Contributing Editor Julian Sanchez (archive here) rails against some of the inaccurate Sotomayor insults emanating from The Weekly Standard and elsewhere.

[A]s you watch these gross distortions pile up, you start coming away with the clear impression that they're not just the result of simple sloppiness, but a deep background conviction that the achievements of Hispanics are always presumptively attributable to special preferences—and that there's no need to double-check and see whether that's supported by the facts in this case.  They just know she can't have really earned it. […]

They really have no idea how they sound to anyone else.

Reason on Sotomayor here