What's Wrong with Judges Legislating from the Bench?

Despite what Sonia Sotomayor must say, Justices often legislate from the bench, and that can be a good thing

Win McNamee / Getty

Supreme Court nominee Judge Sonia Sotomayor testifies on the third day of confirmation hearings before the Senate Judiciary Committee July 15, 2009 in Washington, DC.

Supreme Court confirmation hearings are often dismissed as a kind of ritualized theater that reveals little about the judicial philosophy of nominees. But this stereotype is frequently wrong. From David Souter to John Roberts, many nominees have tended to reveal more of themselves than they expect.

Judge Sonia Sotomayor may have been something of an exception. Like previous nominees, during her confirmation hearings she displayed some aspects of her judicial philosophy — but perhaps not all of them. Adopting a trope more often associated with conservatives than liberals, she said repeatedly that judges should simply apply the...

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