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Published online by Cambridge University Press: 06 March 2019
What do public debates on the appointment of constitutional judges tell us about the view of the law and judicial adjudication? Fernando Muñoz's article focuses on the debates regarding the appointments of Justice Sotomayor to the U.S. Supreme Court and Minister Bertelsen to the Constitutional Court in Chile. According to the author, these debates reflect the tension between two views of the law and judicial adjudication—autonomy and responsiveness—as to how judges should deal with extra-legal considerations in performing their functions. While the autonomy position tries to “defend the substantive values of the law by policing the distinction between the legal and the extra-legal,” the responsiveness position claims that “the law ought to extract its substance from social expectations, needs, and priorities, serving them as a means to an end.” In the author's view, Sotomayor's supporters and Bertelsen's opponents would uphold responsiveness and defend the need of the judiciary to respond to social expectations and needs, whereas Sotomayor's opponents and Bertelsen's supporters would uphold autonomy. The participants on these debates seek to gain hegemony regarding their views on what the law is and how constitutional adjudication should be conducted.
1 Muñoz, Fernando, Not Only ‘Who Decides': The Rhetoric of Conflicts over Judicial Appointments, 14 German L.J. 1195 (2013).Google Scholar
2 Rehnquist, William H., The Notion of a Living Constitution, 29 Harv. J.L. & Pub. Pol'y 401, 401 (2006) (noting that the Senate Judiciary Committee commonly asks Supreme Court candidates at the confirmation hearing whether they believe in a living constitution).Google Scholar
3 Calabresi, Steven G., The Tradition of the Written Constitution: Text, Precedent, and Burke, 57 Ala. L. Rev. 635, 636 (2006).Google Scholar
4 Balkin, Jack M., Framework Originalism and the Living Constitution, 103 Nw. U. L. Rev. 549 (2009).Google Scholar
5 Calabresi, Steven G. & Fine, Livia, Two Cheers for Professor Balkin's Originalism, 103 Nw. U. L. Rev. 663, 675 (2008).Google Scholar
6 Id. at 674.Google Scholar
7 Id. at 675.Google Scholar
8 Muñoz, supra note 1.Google Scholar
9 Malleson, Kate, Introduction, in Appointing Judges in an Age of Judicial Power 3, 7 (Kate Malleson & Peter H. Russell eds., 2006) (stating that “[t]he lack of women and lawyers from minority ethnic backgrounds on the bench throughout different jurisdictions is one of the greatest challenges facing judiciaries today.”).Google Scholar
10 Resnik, Judith, Asking About Gender in Courts, 21 Feminist Theory & Prac. 952, 953 (1996).Google Scholar
11 Id. at 957.Google Scholar
12 Id. at 956.Google Scholar
13 Kenney, Sally J., Breaking the Silence: Gender Mainstreaming and the Composition of the European Court of Justice, 10 Feminist Legal Stud. 257, 258 (2002).Google Scholar
14 Muñoz, supra note 1.Google Scholar
15 Mitchel de S.-O.-l'E. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy 299 (2009).Google Scholar
16 Id. at 299.Google Scholar
17 Id. at 300.Google Scholar
18 Id at 274.Google Scholar
19 Id. at vii (“Unlike the American system, which grounds the legitimacy of its judgments in their (public) argumentation, the French system grounds it in the expertise and quality of its judicial institutions.”). Regarding the American system and the importance of judges engaging in public dialogue, see Owen M. Fiss, The Bureaucratization of the Judiciary, 92 Yale L.J. 1442 (1983).Google Scholar
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