The New Republic’s Jeffrey Rosen offers what he clearly intends as a very approving portrait of Judge Sotomayor’s record—a portrait that differs dramatically from his initial take as well as from the White House’s efforts to market Sotomayor as a “nonideological and restrained judge.” Whether Americans should find cause to welcome what Rosen approves of is a different matter.

Rosen’s piece focuses heavily on Sotomayor’s dissents, since it’s “often in dissents that appellate judges can express their true selves—their passions, judicial philosophies, and unique views of the law.” According to Rosen (emphasis added):

Unlike her majority opinions, her dissents sometimes show flashes of civil-libertarian passion or indignation, even as they remain closely grounded in facts and precedents. Most important, they are substantively bold, staking out unequivocal liberal positions–from a broad reading of the Americans with Disabilities Act to sympathy for the due-process rights of a mentally ill defendant.…
It’s in these dissents that a different view of Sotomayor emerges: a judge who can be both crusading and open-minded.…
Her most impressive dissents reveal her to be a true civil libertarian.

Rosen finds Sotomayor’s dissents “methodologically as well as ideologically eclectic”:

She samples from different judicial philosophies in different cases. Sometimes Sotomayor sounds like a textualist in the Scalia style, and sometimes she sounds as enthusiastic as Justices Ginsburg and Breyer in her devotion to international law and the living constitution.

A few comments:

1. An important part of the job of a Supreme Court justice is the often difficult work of objectively determining the meaning of the civil liberties enshrined in the Constitution and embodied in statutory law. If that were all that Rosen signaled by labeling Sotomayor a “true civil libertarian,” there would be no cause for concern. But his references to her “flashes of civil-libertarian passion or indignation,” her “crusading” spirit, and the “unequivocal liberal positions” that she has staked out in “substantively bold” dissents are strong warning signs of a liberal judicial activist who will redefine the Constitution to comport with her policy preferences.

2. What Rosen euphemistically labels Sotomayor’s “methodological eclecticism” is another strong warning sign. It’s tempting for justices to pick and choose different methodologies in different cases in order to reach the results that seem right to them or that they want to reach. A justice who doesn’t commit to a constraining interpretive methodology has no barrier against indulging that temptation.

3. Curiously, Rosen (a) approvingly cites a study that concludes that Justice Souter “can be objectively described as a judicial activist,” (b) says that Sotomayor will adopt “more liberal positions on civil liberties and business issues” than Souter, but (c) relying entirely on her appellate opinions rather than his own prediction of how she will be as a justice, opines that “the charge that she is a judicial activist” (emphasis added) will be “hard to sustain.” Perhaps that depends on the meaning of “is.” If the concern is that Sotomayor will be a liberal judicial activist, Rosen himself has provided ample cause for that concern.