Does Lanny Davis Know What A Strict Constructionist Is?

by Pejman Yousefzadeh on June 1, 2009

I have to think that the answer is “no,” seeing as how Davis’s argument that Judge Sotomayor is a “strict constructionist” judge seems to revolve around the contention that Judge Sotomayor has, in the past, supposedly ruled in favor of conservative public policy positions. Of course, issuing rulings that conservatives may like on public policy grounds does not make one a “strict constructionist,” or, for that matter, an originalist. Justice Scalia is an adherent of originalism–which conservatives favor as a method of jurisprudence, and which differs from strict constructionism–and yet, he joined Justice Brennan’s majority opinion in Texas v. Johnson, which held that flag-burning was protected speech under the First Amendment. Did this somehow make Justice Scalia less of an originalist, or less of a conservative judge, and turn him instead into a clone of Justice Brennan, or Justice (Thurgood) Marshall? The very thought is ridiculous, and yet, under Davis’s form of reasoning, one could potentially make the argument that Justice Scalia is a “living Constitution” adherent.

I imagine that Judge Sotomayor’s supporters can do better than roll out Lanny Davis to serve as the judge’s advocate. So why is it that they settle for making an argument that can be so easily mocked?

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