If nothing else, one has to admire President Obama’s sheer chutzpah.  Today he made an appearance at a House Republican retreat, giving a short speech and then taking questions.  Congressman Steve King (R-IA) tweets:

President Obama just told us that most of Healthcare negotiations took place on CSPAN and that he’s a centrist and not an idealog.

Oooo-kay.  I mean, how do you even respond to that, other than to ask,  “What color is the sky on your planet, Mr. President?”

As with last year’s February address, I have some thoughts on the President’s State of the Union speech, in no particular order:

Read More

In the president’s book, The Audacity of Hope, he devotes an entire chapter to explain what he sees as the appropriate method of constitutional interpretation, and why.  He wrestles at some length with originalism (exemplified however imperfectly by Justice Scalia) before ultimately rejecting it as being too hidebound and inflexible to serve the needs of modern American society.  He then goes on to explain his affinity for living constitutionalism/legal realism (as exemplified however imperfectly by Justice Souter).

I regard living constitutionalism/legal realism as lawless, intellectually incoherent, and corrosive to the social compact that a written constitution codifies.  A written constitution is supposed to be hidebound and inflexible; the entire point is to preserve the substance of the social compact by constraining the method and pace of political change.  If, when attempting to ascertain the meaning of a constitutional provision, your inquiry elevates prudential or structural considerations over the question of what the people actually ratified, then you may be doing many things but you are not honestly and faithfully interpreting the law.

I believe that someone who cannot or will not honestly and faithfully interpret the law can certainly have a brilliant career as an attorney or a legal scholar.  But I believe that such a person is fundamentally unfit to be a judge, where honestly and faithfully interpreting the law is a basic requirement of the job.  And I do not care whether that individual is white, black, Hispanic, male, female, straight, gay, or Martian: I’ll take a bi-racial lesbian polygamist who’ll interpret the Constitution faithfully and honestly over a straight white male whose rulings do violence to its meaning.

I believe that Mr. Obama would not have nominated Ms. Sotomayor to the Supreme Court if she did not share his views with respect to constitutional interpretation.  I believe, therefore, that the burden is on the President and his nominee to satisfactorily demonstrate that Ms. Sotomayor will in fact be guided in her decision-making by fealty to what the people actually ratified, rather than to a political agenda, her own policy preferences, or some visceral, case-at-a-time sense of justice.  Particularly in light of the President’s advocacy for Ms. Sotomayor on the basis of her “empathy,” I do not believe they have met this burden, and I think that Ms. Sotomayor’s nomination ought to be rejected by the Senate notwithstanding her resume.

UPDATE: In response to the “you’d oppose anyone Obama nominated” criticism, I can only say if so, it owes to the fact that anyone Mr. Obama would nominate is a voluptuary of living constitutionalism/legal realism.  The notion that constitutional interpretation is a results-oriented endeavor is not without adherents on the right (see, for example, Richard Posner), but seems to be a regrettably common affliction on the left, these days.

Were Mr. Obama to nominate someone like Cass Sunstein, who wasn’t thrall to living constitutionalism/legal realism, I’d support the nomination unreservedly notwithstanding my political disagreements with the President or his nominee.  While I think the Constitution describes a classically liberal system of government, I do not think that only classic liberals/libertarians are qualified to be judges.  Unfortunately, Mr. Obama’s nominees seem likely to be in the mold of Erwin Chemerinsky.

For the record, of former President Bush’s three nominees to the Court, I supported John Roberts unequivocally, was on the fence about Samuel Alito, and opposed Harriet Miers.

Instead of blustering about the need to police the fine print of consumer credit agreements, how about policing the fine print of federal legislation — say, by requiring congresscritters to actually read and understand the full text of bills before voting on them?