July 23, 2009

Victory for Conservative Jurisprudence?

President Barack Obama:
The legal process alone will not lead you to a rule of decision...the critical ingredient is supplied by what is in the judge's heart.

Judge Sonia Sotomayor:
[I] wouldn't approach the issue of judging in the way the president does.

The blatant contradiction of these two statements was evident to anyone watching the Sotomayor hearings in the past week, and further, to anyone who has studied jurisprudence in the past two decades. While the liberals tout their "living" constitution (highlighted by justices such as Brennan, Ginsburg, and Breyer), aka the taking of a solid foundational document and turning it into play-dough to be molded and shaped according to subjective beliefs, the conservatives have always countered with legal positivism and strict construction.

In a nutshell, these conservative theories basically require following the law as it stands, and using commonly held beliefs and definitions pertaining to constitutional law when interpreting the constitution. However, the hearings did not focus on how alive the constitution was (to Sotomayor) or how big of a role subjectivity played (at least from a greater, overall outlook), but rather, Sotomayor pulled a 180, stating that she has always followed the rule of law and will always do so. She did this at the complete support of the democrats on the committee, who stated the same exact thing: the rule of law dominates in the eyes of the Senate and the American people.