On the Federalist Society Online Debate on the Sotomayor hearings (click here and scroll down), my Georgetown Law colleague Mike Seidman--a cofounder and intellectual leader of the Critical Legal Studies movement in the 1980s--is brutally candid in his opinion of Judge Sotomayor's testimony today:

Speaking only for myself (I guess that's obvious), I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

While I do not share Mike's view of law as radically indeterminate, I sure think it is a whole lot more underdeterminate than Judge Sotomayor made it out to be in her testimony today. Mike deserves much credit for speaking his mind about a continued refrain that really grated on me as well. One wonders what other law professors privately think about today's performance.

Update: I am not sure what the etiquette is for near simultaneous links to the exact same post. Should I, the second in time, (a) remove mine? (b) Edit it to eliminated the redundancy? Or (c) post this update wondering about what the etiquette is. I am going with (c).