Book Review: Radicals in Robes - Page 4

Additionally, although Sunstein indicates that the Republican presidents of the last 25 years have put fundamentalists on the bench, there is little, if any, quantitative analysis of that assertion. While he holds up Scalia and Thomas—appointed by Regan and Bush I, respectively—as leading fundamentalist, there is no analysis of where the judges sitting on the federal district courts and courts of appeals fall in the four theories. Similarly, there is no discussion of where in this range of constitutional interpretation to place the various appointees of the Clinton Administration or comparison of the number of judges in each category appointed by the four administrations.

Despite these flaws, Sunstein's work is relevant and useful. Rather than interest groups and politicians scouring paper trails for positions or statements on particular issues, we may be better served by analysis of which of the four theories of interpretation a judicial nominee leans. Those theories may be a better guide to whether our constitutional future will be determined by radicals of either stripe or those who believe the law should evolve by limited steps as American society faces new and different issues.
Edited: PC

Article Author: Tim Gebhart

Tim Gebhart lives in Sioux Falls, SD, where he practices law in order to provide shelter for his family, his dogs, and his books. He is a member of the National Book Critics Circle and his blog de guerre is A Progressive on the Prairie.

Visit Tim Gebhart's author page — Tim Gebhart's Blog