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Guest blog post by Ilya Shapiro.

One of the themes running through the confirmation hearings is whether the right to X, Y, or Z is “fundamental”—in a “legal” sense, as Sotomayor keeps reminding us.  This somewhat arcane theme is important because in the 1938 case of Carolene Products, in what has become the most famous footnote in legal history, the Supreme Court bifurcated our rights.  Certain political and civil rights were judged to be “fundamental,” while others, such as property rights and economic liberties, were something less.  The significance of a right being “fundamental” under this modern doctrine—which the Court created out of whole cloth—is twofold: 1) only “fundamental” rights are to be “incorporated” under the Fourteenth Amendment’s due process clause, and so can be invoked to challenge state laws and regulations; and 2) courts review state actions infringing “fundamental” rights with “strict scrutiny”—which is essentially a guaranteed striking of the law or regulation in question—while actions implicating lesser rights need only have a “rational basis” to survive.

Thus, if the Second Amendment’s right to keep and bear arms is not “fundamental,” last year’s historic Heller decision is only relevant to the District of Columbia and other federal enclaves, and not to the overwhelming majority of Americans who, of course, live in states.  Sotomayor’s Second Circuit panel completely ignored this issue in the Maloney case.  And, as detailed by Georgetown law professor (and Cato senior fellow) Randy Barnett here, Sotomayor’s testimony misstates the “fundamental rights” doctrine. 

Now, the whole idea of bifurcated rights is antithetical to our constitutional system—and makes little legal sense—so Sotomayor could have just outlined her own view of constitutional rights at some point, of how the Constitution protects individual liberty.  But of course, as we’ve seen again and again during these hearings, and as I’ve written in this space, the nominee either doesn’t have an overarching theory of constitutional interpretation or she’s playing coy to avoid giving politically damaging answers.

Ilya Shapiro is a Senior Fellow in Constitutional Studies at the CATO Institute and Editor-in-Chief of the CATO Supreme Court Review. 

It strikes me that Sotomayor has been fairly forthright in her responses to questioning, not hiding too much behind the tired cliche that she can’t answer a question because it could lead to prejudging a case—certainly far less than Ruth Bader Ginsburg and even John Roberts.  Still, on several important issues, such as property rights, national security law, abortion, and even her overall judicial philosophy, she has appeared disingenuous in saying that she has no firm views on the subject—hiding behind precedent again and again as if first principles didn’t exist.  In other words, she says a lot—displaying a broad knowledge of cases and legal doctrine—without answering larger questions.  She answers questions about what the law should be with what the law is, questions about what the Constitution says with what the Supreme Court has said about the Constitution.

This would be barely appropriate for a nominee to a lower court, who is, of course, bound by precedent.  But senators rightly want to know a Supreme Court nominee’s preferred legal theories, what her view of the Constitution is unencumbered by others’ attempts to interpret that document.

The more Sotomayor speaks, the more it becomes clear that these types of nonanswers, this inability to see (or lack of desire to express) a big picture view, is her own essence.  It continues a pattern that is evident from her judicial opinions, which are mostly unremarkable and, in the neutral sense of that term, unimpressive.  For all her career success and a personal story we should all celebrate, she is an average judge who apparently gives little thought to the broad swath of law and where her rulings fit into that.

That is, Sonia Sotomayor is not a Cass Sunstein or Larry Tribe or Elana Kagan or (fellow circuit judge) Diane Wood.  She is not a scholar or an ideologue.  Her liberality is reflexive and warmed-over, a product of the post-modern educational environment that formed her in the 1970s—complete with ethnic activism—but not an intellectual edifice.  This does not mean she isn’t a danger to liberty and the rule of law, or that her votes and opinions won’t harm the Constitution.  But it does indicate that, for all her bluster about being a “wise Latina,” she is little more than a left-leaning empty robe.

Ilya Shapiro is Senior Fellow in Constitutional Studies at the Cato Institute and Editor-in-Chief, Cato Supreme Court Review

Guest blog post by Brian Darling on the Sotomayor hearings

Senator Jeff Sessions is opening the Republican side of the Senate Judiciary Committee battle on the Sotomayor nomination with some strong fighting words.  This is Sessions first high profile hearing as Ranking Member and Sessions has delivered a strong statement explaining the differences between a conservative and liberal view of the proper role of a federal judge.  Sessions says that the “empathy standard is another step down the road” to judicial activism.  Sessions worries that liberal activist judicial philosophy will lead to an America where “constitutional limits are ignored” and talked of a “fork in the road” of judicial philosophy.  Sessions worries that Sotomayor may take the wrong judicial road and push a more political role for judges. 

In a statement building on the argument that a judge needs to be neutral and not swayed by personal biases or experiences, Sessions pledged that “I will not vote for, and no Senator should vote for, any nominee who” is not fair.  Senator Sessions repeated that if a nominee exhibits a judicial philosophy that favors one side, that will be a “disqualifying” factor in this nomination.  Sessions line in the sand is strong.  A nominee may be qualified through experience and education, but may disqualify themselves if they are “not neutral” and “favor one team over another.”  Sessions blasted the empathy standard and stated that “sympathy is not law, it is more akin to politics.”  Sotomayor clearly will have to explain the now famous “wise Latina” comment and try to convince skeptical Republicans that she does not employ a selective empathy standard.

The opening statements of Chairman Leahy and Ranking Member Sessions have set the table for the tone of the debate over the next few days.  Sessions has marked a line in the sand and his tone was much more direct than Leahy.  Expect some fireworks over the next few days in this hearing.  Republicans asking tough questions about Sotomayor’s judicial philosophy and the Democrats playing defense and stressing her compelling personal story. 

Brian Darling is the Director of Senate Relations for the Heritage Foundation.

Republican presidential hopeful Rudy Giuliani on Wednesday won the endorsement of Texas Gov. Rick Perry, despite their differences on abortion rights.

Perry, an abortion opponent, said his biggest concern had been Giuliani's support for abortion rights but that he was satisfied Giuliani would appoint judges who view the issue conservatively.

"The one (issue) that I wanted to hear him give me an answer and look me right in my eyes was that issue of who can I expect, what type of individual can I expect on the Supreme Court," Perry said at a news conference with Giuliani.

"He clearly said ... you can look for people like Scalia and Roberts and Alito. Let me tell you, I can live with that," Perry said, referring to conservative Supreme Court Justices Antonin Scalia and Samuel Alito and Chief Justice John Roberts.

Perry said when he buys a pickup truck, he doesn't rule it out simply because it has one option he doesn't like.