Jason Linkins has a great piece up at Huffington Post quoting Justice Samuel Alito on the virtues of judicial empathy. (“When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”) And also quoting Antonin Scalia on the power of courts to “make law.” To which I add a brief P.S., also from Scalia, concurring in James B. Beam Distilling Co. v. Georgia :
I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense “make” law. But they make it as judges make it, which is to say as though they were “finding” it-discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.
How come when Scalia says it, he’s calling ‘em as he sees ‘em? But when Sotomayor says it, she’s a free-range liberal activist? Note to Sotomayor: The trick is to never apologize.