As everyone knows, Judge Sotomayor's legal opinions are much more moderate than her off the bench speeches and writings. Which should we believe?
Clearly, we should believe the off the bench statements, for a very simple reason.
I'll give you a clue: the same profile -- off the bench writings much more scary than on the bench -- also fit Judge Robert Bork at the time of his confirmation hearings. Why do you suppose Democrats were having hot flashes about his scholarly writings?
The life of a circuit or appellate court judge is very constrained. Of course, in this rule-bound, overregulated world, we are all constrained in a way. But there is a big difference between me and one of these judges.
I am sure the village of Oregon WI could come over right now and "write me up" for several violations I am committing on my property without my even knowing I have committed them. This is true of most Americans who own anything. There are several reasons we are not all paying fines, and possibly doing time in the pokey: that a) the magistrates just don't have the resources to enforce all the rules and regulations that are on the books, b) they are actually decent people and don't want to harass us, which means that c) they don't really care what we do, as long as the mischief is not too great. We are protected against the massive, unpredictable, and incomprehensible tangle of rules by our own insignificance.
With a judge it is very different. There are all sorts of ways a judge's decision can be wrong, so that there are plenty of rules that apply to them, just as to us. But there is a big difference: in a judicial decision, there is always a loser, and the loser always has a strong motive to appeal if they can find a relevant flaw in the decision. When your judgment loses the appeal, the higher judges give a detailed account of why you were wrong, and I've read some stinging ones. It must feel like being a law student and having your exams graded in public.
Writing opinion pieces and giving speeches is obviously very different. There are few constraints and little enforcement. Sure, someone may disagree with you and say why. But you are free to ignore them, and the level of rigor in what they say may be such that you won't take them very seriously if you don't.
Of these two, judging on a lower court and writing opinion pieces, judging on the Supreme Court is a lot more like the second situation than it is like the first. There is no appeal from its decisions. They can overrule themselves, but how likely is that? And even if they do, and it is not just a matter of the justices changing their minds, it is not like being publicly spanked by their superiors.
Supreme court justices are like law students who grade their own exams.
To see how Sotomayor will act on the SC, look at how she acted in the situation that most resembles it. If she suddenly retracts all her extreme pronouncements, as she did today, the big question is which do you believe: the pronouncement or the retraction?