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On Judicial Appointments and Constitutional Adjudication: A Reply to Fernando Muñoz

Published online by Cambridge University Press:  06 March 2019

Aida Torres Pérez

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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.

Type
Part A: Political Theory and Constitutional Reasoning
Information
German Law Journal , Volume 14 , Issue 8: Special Issue - Constitutional Reasoning , 01 August 2013 , pp. 1209 - 1213
Copyright
Copyright © 2013 by German Law Journal GbR 

References

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