First, Richard Epstein:
There is no disagreement from me that empathy is a poor guideline for constitutional decision making. Nor do I believe that our "malleable" Constitution should be the plaything of the justices. But it doesn't follow from these points that it's a cardinal judicial sin to upset federal or state legislation. Nor does some implicit, overarching judicial norm of "strict construction" condemn most forms of judicial intervention.
That narrow conception of the judicial role may be congenial to conservatives who think democratic outcomes almost always have greater legitimacy than judicial ones. As a libertarian, however, I do not share that judgment. The Founders well understood the risk of faction, which could allow simple majorities to restrict the liberties or confiscate the property of their political opponents. [...]
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.
Then Julian Sanchez:
[A]s you watch these gross distortions pile up, you start coming away with the clear impression that they're not just the result of simple sloppiness, but a deep background conviction that the achievements of Hispanics are always presumptively attributable to special preferences—and that there's no need to double-check and see whether that's supported by the facts in this case. They just know she can't have really earned it. [...]
They really have no idea how they sound to anyone else.
Here's my take: Liberal or conservative notwithstanding, Sotomayor certain qualifies as a Statist, which means she shares the overwhelming starting-point political view of the other eight justices. As something of a social liberal [read a lot of her decisions and you may find she's not as predictable as you think], Judge Sotomayor will be replacing Justice Souter, who was also something of a social liberal [though again, not always]. The racist bullshit being trotted out regarding her wise Latina woman comment is just that, and I am growing heartily tired of people on both sides with their gotcha games of Gee, look what she said to the American Tourister convention....
So while I'd naturally prefer to see someone with at least some demonstrable Libertarian tendencies on the Supreme Court, she's neither an unreasonable nor a radical pick, and her confirmation won't change the Court's composition [except that she might get over-turned a little less often....]
So count me [and most other Libertarians] in the yawn column while the Lawn Jockey Caucus of the Old Confederacy and Buffalo Commons Party [the entity formerly known as the GOP] twists the knife a little further in its own intestines, and the Democrats use the hearings to ignore two wars, North Korea, Iran, and the fact that they've already spent more money than even my grandchildren will make, for a recession that [surprise, surprise] is apparently going to end before most of that spending actually kicks in....