The brilliant Richard Epstein, a former colleague of Barack Obama's on the University of Chicago Law School faculty, foresees some potential trouble ahead for the Sotomayor nomination. Writing in Forbes, he offers some cautionary words before looking into one very troubling case Sotomayor decided.
... affirmative action standards are a bad way to pick one of the nine most influential jurists in the U.S., whose vast powers can shape virtually every aspect of our current lives. In these hard economic times, one worrisome feature about the Sotomayor nomination is that the justices of the Supreme Court are likely to have to pass on some of the high-handed Obama administration tactics on a wide range of issues that concern the fortunes of American business.
We have already seen a president whose professed devotion to the law takes a backseat to all sorts of other considerations. The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court's jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.
Read the entire piece for Epstein's discussion of the troubling decision in the Didden v. Village of Port Chester case.
Recall that when Jodi Kantor of the NYT interviewed colleagues about Obama's performance as a faculty member at U of C Law School, Epstein noted that Obama avoided discussing the law (unlike other faculty):
Nor could his views be gleaned from scholarship; Mr. Obama has never published any. He was too busy, but also, Mr. Epstein believes, he was unwilling to put his name to anything that could haunt him politically, as Ms. Guinier's writings had hurt her. "He figured out, you lay low," Mr. Epstein said.
The Chicago law faculty is full of intellectually fiery friendships that burn across ideological lines. Three times a week, professors do combat over lunch at a special round table in the university's faculty club, and they share and defend their research in workshop discussions. Mr. Obama rarely attended, even when he was in town.
"I'm not sure he was close to anyone," Mr. Hutchinson said, except for a few liberal constitutional law professors, like Cass Sunstein, now an occasional adviser to his campaign. Mr. Obama was working two other jobs, after all, in the State Senate and at a civil rights law firm.