Perhaps—but it’s a sad state of affairs when a nominee in as strong a position as Sotomayor isn’t willing to risk even the most modest gestures toward judicial candor. To take an extremely simple example, consider her statement that she would “interpret statutes according to their terms and Congress’s intent.” As any law student could tell you, a very common source of legal conflict occurs when the apparent plain meaning of statute’s text conflicts with the legislature’s intended meaning. In such circumstances, which meaning should prevail?
Someone like Justice Scalia would give one answer that question, while someone like Justice Stevens would give another. There’s one place, however, where you won’t find the answer to this exceedingly straightforward question: “the law.”
And the typical Supreme Court case involves legal questions that are orders of magnitude more complex than this example.
Of course Sotomayor knows all this, but as Seidman suggests, the official story Americans are given about how the law works is a childish fairy tale, that in turn more or less requires people in Sotomayor’s position to utter innocuous banalities.