Pudge has some simple, yet interesting, questions for Sonia.
But I'd also ask what she thought of President Obama's judicial philosophy, as expressed in Audacity of Hope. In that book, then-Senator Obama criticized "strict constructionism" and its adherents. He wrote:
Some, like Justice Scalia, conclude that the Founding Fathers will tell us all that we need to know, and that if we strictly obey the rules they've laid out -- for example, that the only rights protected in the Constitution are those that are written in plain English as understood by those who wrote them -- then democracy is respected, and fairness is achieved.
After debunking this assertion, Pudge continues:
Obama notes correctly that Breyer is, in essence, a consequentialist ("take the practical outcomes of a decision into account", even if they violate the letter and intent of the law), but it gets worse than merely agreeing with Breyer (which is bad enough). He then writes:
The historical record supports such a theory. After all, if there was one impulse that was shared by all the Founders, it was rejection of all forms of absolute authority, whether the king, the theocrat, the general, the oligarch, the dictator, the majority, or anyone else who claims to make choices for us. But it's not just absolute power that the Founders sought to guard against. Implicit in its structure, in the very idea of ordered liberty, was a rejection of absolute truth, the infallibility of any idea or ideology, or theology, or ism ... any tyrannical consistency that might lock future generations into a single, unalterable course, or drive both majorities and minorities into the cruelties of the inquisition, the pogrom, the gulag, or the jihad.
Coming back to Pudge and Sonia, emphasis mine:
But to bring it back to Sotomayor and her hearings, I'd ask her if she agrees that some notion of a historical rejection of absolute truth or authority of any kind -- explicitly including that of the Constitution itself -- justifies a Justice ignoring what the Constitution actually says in favor of pushing for certain higher "purposes" or preferred "consequences."
'Ignoring' might be a heavy word choice here. Clearly, in altering the fundamentally libertarian course of the Constitution towards a Progressive, utopian course, you can't just turn the ship on a dime. Or course you are not so crass as to 'ignore' the Constitution.
- You have to shame the Constitution as a tool of white, European male oppression. Apologize early, apologize often. The less historically founded, the better.
- You have to obscure the timelessness of moral hazards. These had been substantially checked by the three-branch/three-level design of the Constitution. Focus on the shininess of new technology. New people require new thinking. The very age and stability of the Constitution are a bug, not a feature. The fact that it has not already been scuttled, far from indicating a substantially reasonable approach (modulo slavery) instead mean that Progress has more work to do. Trust instead the Latina who is wise.
- You have to support leaders who are ready to blow Article Five right off.
- You have to be patient. The cranks who adhere to the Constitution will die slowly enough. It took Moses two generations to prepare the Israelites to enter the promised land. It may take as many as ten to prepare Americans for re-entry into a symbolic Egypt.
- You have to own the media. Get them to lie for you, early, often, systematically. Provide a scapegoat (e.g. a Sarah Palin) figure for them on whom to pour the bile with which they'd love to decorate you.
- You have to have tools like Affirmative Action that claim to promote fairness while, over time, increasingly achieving opposite results. There is sweetness in perversion.
Sonia is a sufficiently skilled sophist to appreciate the humor in Pudge's question. She may not like him exposing the project in quite so succinct a question. But subverting his mind might make a fine side project for her, along the way to wrecking the Constitution itself. But slowly, with much ornate phraseology.