It is true that the former comments are indeed troubling and go to the question of whether litigants before her Court can reasonably expect a neutral and dispassionate hearing on the merits of their cases. However the latter comments are even more troubling because policy making is among the least appropriate practices of the judiciary and her comments raise the question as to what policies will be promulgated and for whose benefit and perhaps most importantly if the U.S. Constitution and American law won’t be used, on what will she use instead as the basis for these policymaking decisions?

Her comments at Duke don’t appear to be a passing fancy. According to a piece written for the Suffolk University Law Review then District Judge Sotomayor cites favorably obscure liberal legal philosopher Jerome Frank’s argument that the law should be neither stable nor certain. Frank the founder of the now mostly discredited school of legal realism prominent during the FDR era is promoted the idea that instead of consistent application of the law to a given set of facts, a judge’s ruling might be instead determined by what the judge had for breakfast.

Rather than the traditional view that the law and related rules should be consistent and predictable, she praises the opposite suggesting in the piece that “an unpredictable system of justice is one that serves a productive, civilized but always evolving, society.” This threatens the very core of the notion that we are a nation of laws.

And while the notion that the law needs to have wild swings in order to promote a healthy society is a popular view held by east coast college sociology professors, for a judge sitting on the highest court in the land to hold such a view isn’t just bad form, it is dangerous.

Every American’s rights are premised on the validity of the United States Constitution – not the whims and perceived needs or excesses imposed on them by unelected judges. Additionally, the policy making solutions that renegade judges come up with never ratify the ethos of the American heartland, instead they are often antithetical. It seems the temptation to create law from the bench most often coincides with a philosophical vision that is out of sync with the interests and needs of American electorate. Instead of persuading the public to change its mind on gun control, needle exchanges and gay marriage, the left has flocked to the courts to find judges who will literally invent law in order to obtain policy outcomes that they can never attain in the democratic arena.

This is precisely why the public says that they prefer a limited role for judges. And now with Sotomayor’s poll numbers sinking down to those of failed Supreme Court nominee Harriet Miers, the Obama Administration may find the calm seas beginning to turn into a perfect storm.