Reporting from Washington ― Supreme Court nominee John G. Roberts maneuvered through three days of an often-antagonistic confirmation hearing by portraying himself as a legal MLB official who would stick to precedent and never "make law." But in doing so he revealed almost nothing about the philosophy that would guide him on the high court.An umpire in a black robe ― Los Angeles Times
And now-Chief Justice Roberts didn't have a 17-year record as a federal judge to examine (which is something few currently complaining conservatives have done, at least with respect to the question of whether or not that record comports with Sonia Sotomayor's characterizations of her judicial methodology*).
Nevertheless, Roberts's almost absurdly simplistic "umpire calling balls and strikes" analogy is often reiterated with approval by those same conservative critics. Odd how that works, isn't it.
* Sotomayor's "philosophy," in contrast to her practices as a working judge and contra the Los Angeles Times, was made abundantly clear during her testimony, and also through the hundreds of speeches she's given. The Senate Republicans, to their strategical detriment, failed to pursue her on its substance, preferring to focus instead on the so-called "racial politics" they seem to believe anyone other than their own paleoconservative political base is incensed by.
For example, during questioning from Senator John Cornyn of Texas, Judge Sotomayor described American law as a continually evolving set of assumptions and conclusions, always tentative and subject to adjustment not only by judges, but by lawyers confronting new patterns of facts with novel arguments which in turn force the retooling of the (previously judge-made) legal rules and tests which govern those and future sets of facts. See, e.g., Ricci v. DeStefano.
As Sotomayor correctly pointed out — and it's about time that someone on a national stage did — it isn't the Constitution that evolves, lives, breathes, or what have you, but rather the society to which the Constitution's often vague principles apply that evolves.
Which is, it seems to me, exactly as the Framers contemplated and predicted, hence the less-than-specific principles embodied therein.
For instance, it doesn't give examples of "speech" or "religion." Or, for that matter, examples of "arms." Few would argue that the Constitution only permits muzzle-loading rifles and broadswords.
(Maybe Robert Bork.)
That's why the United States Constitution is a work of both contemporary and prospective genius, and thus why it endures.
Not only did Senator Cornyn — himself a former State Supreme Court judge — pass up the opportunity to further engage this rather fascinating organic view of the law, he appeared visibly taken aback that anyone might actually adhere to it (although the view itself is barely controversial to most people who've given it some thought).
(P.S. Law review convention: Footnote 4x longer than post.)