in his Forbes column — this time criticizing the conservative judicial minimalist case against her:
Alas, the inescapable truth is that constitutional law contains no magic bullet that condemns judicial activism and lauds judicial restraint. The public outcry over the Supreme Court’s rendering of the “public use” language in Kelo v. City of New London was for its failure to use plain constitutional language to stop the egregious decision of New London to condemn Ms. Kelo’s land literally for no reason at all. If that’s judicial activism, then words have lost all meaning.
These observations have clear implications for the ongoing debate over the Sotomayor nomination. However unhappy conservatives and libertarians might be with her nomination, they won’t put a dent in her confirmation prospects in the Senate and they won’t alter the terms of the political debate by waving the tattered flags of judicial activism and strict construction. There are no intellectual shortcuts.
Her opponents have to engage in a more fine-grained inquiry that shows why the judges, like Sotomayor, who work in the progressive tradition embrace a judicial philosophy that leads them to make both kinds of constitutional errors. Intervening in cases where they should stay out–Roe v. Wade comes to mind–and not intervening where they ought to intervene, as in Kelo and Didden. To this libertarian, Karl Rove’s broadside won’t get this campaign off to an auspicious start.