thinking out loud . . .

I am alarmed by this quote from you, provided by the AP in a story titled “GOP senators weigh options for Sotomayor”:

“Your judicial record strikes me as pretty much in the mainstream of judicial decision-making.”

The issue for me is that, in evaluating Judge Sotomayor’s judicial philosophy, are we to give more weight to what she says—on multiple occasions—are her priorities and principles, or to her judicial record, which—until this point—has been constrained by precedent and by rulings of higher courts?

I think we should judge her by her repeated statements and be cautious about giving her a lifetime appointment on a Court where there are no constraints. Yes, during the hearings, she did her best John Roberts imitation, but it was obvious, to me at least (and to some of her liberal brethren) that she was speaking words that did not reflect her own convictions.

She is clearly out of the mainstream of judicial philosophy.

Judge Sotomayor also lacks Roberts’s intellectual depth. She is clearly in over her head intellectually, as the liberal Jeffrey Rosen predicted. (And while my long-time, half-kidding wish to appoint at least one grammarian to SCOTUS will undoubtedly remain unfulfilled, wouldn’t it be helpful if our justices had a better mastery of syntax and grammar than that offered by the oft-stumbling Judge Sotomayor?)

I was shocked, reading the also-liberal Georgetown Law Professor Mike Seidman say he was “completely disgusted” by her testimony:

“If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court.”

I often look to Ed Whelan for insight into judicial nominations. Over the years I have found him to be a calm, knowledgeable, and plain-spoken champion for a Constitutionally-centered judiciary. This is what he says about Judge Sotomayor’s testimony. I hope you’ll take his wisdom seriously:

Judge Sotomayor deserves an A+ for brazen doublespeak. She emphatically rejected the lawless “empathy” standard for judging that President Obama used to select her, but she denied the plain import of her many statements contesting the possibility and desirability of judicial impartiality. She hid behind a ridiculously simplistic caricature of judging that embarrassed and disgusted her most vociferous backers, but she never recognized any meaningful bounds on the role of a Supreme Court justice. She gave a series of confused statements about the use of foreign law that are inconsistent with each other and that contradict a speech that she gave just three months ago.

The primary question that Judge Sotomayor’s testimony raises is whether her thinking is really so muddled or whether she was being savvily deceptive—or both.

In this difficult time for our Nation, we cannot afford to unleash a person who is either willing to lie in order to be confirmed or simply not intelligent enough to know the difference between her most-cherished beliefs and the hastily-memorized bullet copy the administration gave her before the hearings.

We also cannot afford to continue our long practice of blind deference to the President while the other side does everything it can to destroy our best judicial nominees.

I urge you, Senator Cornyn, to use every tool available to you to keep this radical off the Supreme Court, up to and including a filibuster. Don’t be afraid that, by doing this, you will offend Latinos. Bring to their attention the treatment given to another Latino who was a genuine legal intellectual—also an immigrant whose native language was not English—the brilliant Miguel Estrada.

Texas and the country are depending on you to be our voice and to do the right thing.

Thank you.