June 1, 2009

LEGAL REALISM. A new/old bugaboo for Sotomayor opponents. I would love to have a sophisticated national dialogue about Legal Realism (which is much-discussed here at the University of Wisconsin Law School), but so far it looks as though the discussion will not be too sophisticated. It’s pretty much: she talked about Legal Realism, Legal Realism is judicial activism, and judicial activism is judges imposing their own political preferences, so Sonia Sotomayor is unfit for the Supreme Court. But, as University of Chicago lawprof Brian Leiter said:

“Everybody who knows anything knows that Legal Realism is a description of what judges really do… I give [Sotomayor] a lot of credit, frankly, for talking about it openly. It’s unusual for a sitting judge to say it openly, because judges don’t want to attract the political heat from acknowledging what everyone already knows, which is that appellate judges especially have to make new law – that they can’t just apply the law as written.”

I would love to have more Supreme Court Justices who say what they really think. Imagine if, when reading a “decision,” we were actually reading the decision.

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