20 Questions for Judge Sotomayor:
The full list of Senator John Cornyn's "Daily Questions for Judge Sotomayor" are available here.
Related Posts (on one page):
- More Questions for Sotomayor:
- 20 Questions for Judge Sotomayor:
- Did Judge Sotomayor Issue an Advisory Opinion?
- Senator Cornyn's "Daily Question" for Judge Sotomayor:
Question 2: What is the power of a federal court to interpret the law absent a "Case" or "Controversy"?
Question 3: How much should courts defer to the judgment of Congress and the Executive Branch in the area of national security?
Question 4: What is the role of statutory text in statutory interpretation?
Question 5: Are there any limits to the power of Congress under Article I, Section 8 of the Constitution?
Question 6: What is the role of original intent and originial public meaning in constitutional interpretation?
Question 7: How can a judge objectively apply the law if she believes there are multiple realities and multiple versions of the truth?
Question 8: Does Judge Sotomayor believe that the firefighters' claims in Ricci v. DeStefano are routine and not worthy of careful treatment?
Question 9: Are judges supposed to update the law to reflect changing social policy?
Question 10: What did Judge Sotomayor mean when she agreed that the Second Amendment does not protect a fundamental right?
Question 11: How should courts measure the Government's need to protect the public safety against the threat of terrorism?
Question 12: Does Judge Sotomayor continue to believe that the city of New Haven should have been allowed to scrap the results of its firefighter exam on the basis of race?
Question 13: Does the Takings Clause provide any limits on the power of the government to take private property?
Question 14: Has the Supreme Court made any missteps in the last fifty years that might justify public skepticism about lawyers and the courts?
Question 15: Is the Constitution color-blind?
Question 16: Should the Constitution be interpreted to allow the death penalty, and if so, under what limitations?
Question 17: Should constitutional interpretation resemble common law decisionmaking?
Question 18: What limits does the First Amendment impose on campaign finance regulation?
Question 19: What is the proper role of judges in defining marriage and the family?
Question 20: What is Judge Sotomayor's judicial philosophy?
I can see Orin Kerr's fine hand in them (not that John Cornyn is a slouch as an attorney).
1. I wonder if Cormyn (or anyone else) is going to ask them or, if instead, we're going to hear the typical long-winded speeched followed by- "Do you agree?"
2. Questions 5, 11, 13, 16, 18 (especially) and 19 (heh...) are of the ... I am sorry, those go to questions that I will likely be adjucating blah blah blah.
3. 15 is interesting, but I expect a 2-type response or something non-commital.
4. As for the rest, I would love to hear them.
Doesn't that question put the cart before the horse? The correct answer is "none", and I'm sure that's what the Judge would say. The better question would go to the amount of flexibility inherent in the concept of "case or controversy". (Cf. the comments here, yesterday, concerning the link between the c&c requirement and the ability of the courts to raise certain issues sua sponte.)
At least as to criminal justice matters, Cornyn appears more interested in point scoring than serious discussion.
We really need to extirpate religion from public life at ALL levels of government, and it should have no influence on our policy making. (It needs no repeating that there are only religious "arguments" for discriminating against gays, there is no legitimate neutral secular argument against equality). It's bigotry, pure and simple. People in power exploit the ignorant and their faith, stirring up base emotions and causing them to rally around leaders because of hate instead of real solutions to real problems.
Source: observations of a straight atheist dood who was raised in a Christian family.
I think the questions were worded so that they were generalized questions that were unlikely to elicit the non-response of "I'm sorry, but I cannot answer that question as I will likely be judging a case involving such an issue and cannot pre-judge it. blah blah blah." Any Apprendi/Booker question would certainly get that response. I think OK/Cornyn did a pretty good job of avoiding those questions, although I outlined the ones I think are problematic, and I think 18 doesn't have a chance in hell of getting answered for that reason.
Why is "What is the proper role of judges in defining marriage and the family?" a bullshit question?
She can respond in a variety of ways--particularly since family law is an area that the Supreme Court has historically shied away from addressing.
Given what I know about Cornyn, I don't think he was interested in family law, but in taking an opportunity to use gays as a political tool again. If he was merely interested in family law, he could've asked her something much less loaded, like the constitutionality of the UCCJEA or UIFSA, or giving full faith and credit to child custody decisions, or whatever.
I mean start with the premise that these questions are meant to elicit something significant from the judge, and not merely to test their knowledge of the law in a neutral way (a pretty reasonable supposition). Further assume that the senators who ask questions generally have in mind a "correct" and "incorrect" answer. Next, interpret what he asked - he wasn't asking generally about family law when he referred to "defining marriage and the family" - he was clearly referring specifically to states excluding gays from the numerous legal protections afforded by recognizing marriage - intestate succession of property, "homestead" protection from creditors, special joint tenancies for married couples, etc. etc. etc. Finally, ask yourself what the "correct" question was in Cornyn's mind. It is clearly "judges should defer to states and allow them to discriminate against gays."
Religion will always be an influence on policy making, because the history of humanity is one of searching for higher meaning. The desire of every man and woman to find some meaning beyond themselves will inexorably lead many of them to religion. Atheists have never been and will never be a majority of the human race.
Then if religion will always be a part of humanity, it follows that adherents to religion will always seek to influence public life. There's no question that religion has often been used to excuse evil brought upon other men, but it's also without question that religion has compelled great acts of kindness and mercy towards humanity. We get jihad and hospitals.
So the question becomes not "should religion influence public life?" because it always will, but "what role will religion have?"
I do not accept that atheism will never have a hold on a majority of humanity. Indeed, in many highly advanced countries today (Sweden, Japan), for all intents and purposes, the majority of people are atheist. There are still vestiges of official religion and formalities in some cases, but I'm fairly sure that the polling data reveals that most people do not believe in deities anymore in those countries.
Furthermore, even assuming that you are correct that humanity will always search "for a higher meaning" (something I'm willing to assume is correct), I think it is far from obvious that the "something higher" will be religion in the future. Most modern religion are bastardized versions of Iron Age myths. Religion was our answer in a time when we were incredibly ignorant about the nature of reality and our place in the universe. I see no reason why we might not get our "higher meanings" from science (which offers far more compelling explanations for the cosmos than religion ever could), philosophy, and the arts.
The problem with your criticism is that you are inferring what you THINK Senator Cornyn means based on your own views of Senator Cornyn. In other words, you are saying the question is bad based on what you perceive Senator Cornyn wants to hear. That doesn't make the question itself bad or even loaded.
Layman's input.
Ask yourself this: if the most virulent segregationist in 1960 asked a judge : "what do you think the proper role of the courts is in defining relations between negros and the white race?" It's a perfectly neutral question on its face, but its reasonably to infer that this particular senator is sending a more sinister message.
What message is being sent, except that the senator thinks it would be valuable to know the answer to the question? Don't you think it would be useful to know what Sotomayor thought about that subject?
Indeed. Quite to contrary, SS could bat that one of out the park -- "Family matters are traditionally a matter left to the States and the job of the SCOTUS is not to get in the way of 'laboratories of democracy' when they decide to try new policies."
As an aside 20 is far too large a number of questions from a marketing point of view. Most people see this and see a long laundry list. Conryn should take a cue from Judaism and cut it down to the 4 for maximum effect. He's clear got a lot of PR work to do.
A few questions are abstract enough that she might answer, but most relate directly enough to cases that will likely come before the Court in the very near future that he will likely not answer. I list those below.
The sad reality is that the senator's solitary criminal law question shows one of the prudential reasons why the death penalty should be banned. It sucks up so much attention and resources that few bother to think about the rest of the system. Sometimes that's good for my clients. Liberal legislators and judges can sometimes get away with being, well, more liberal in most criminal matters by voting for or imposing the death penalty.
But the Confrontation Clause cases and cases requiring the State to meet its burden to prove elements affect far, far more cases than any death penalty issue. The Confrontation Clause and jury trial issues are also much more central to the idea of protecting citizens against the unchecked power of government.
Plus, libertarians especially should be concerned that the Court's statist* conservatives and statist liberals (Roberts, Alito, Breyer, and sometimes Kennedy and Ginsberg) are trying to block an effort to enforce the Sixth Amendment. That amendment gives defendants the right to confront their accusers in court, but the statist wing of the Court seems to want to allow the government to throw people in prison based on the presumed truth of government-produced lab and coroner results.
The same block largely undid Justice Scalia's enforcement of the right to have a jury determine whether the government has proven all elements of an offense beyond a reasonable doubt. Thanks to the statist block, the government avoid its burden if they re-label the elements as "sentencing factors."
Based on what I've read, Sotomayor is a statist more like Roberts, Alito and Breyer and less like Scalia, Thomas, Stevens or Souter. I can see why libertarians would be concerned about her. She is pretty much the anti-libertarian candidate on all but a few liberal civil-side civil liberties issues.
*I'm open to a better term than "statist." I just couldn't come up with a better description.
I disagree with that, as I explained above. I believe that the message above (regarding his views on what judges should believe or do regarding gays) was sent to his constituents intentionally. He does not want a judge invalidating discriminatory laws against gays on the basis of equal protection or due process.
I don't know how express it more clearly.
This is all well and good, but we've already been through one Bork confirmation.
And I believe it was the popular Greek orator Seanus Hannitus who originally said, "Monotheists have never been and will never be a majority of the human race." Shame on you for riffing without attribution.
"But let's be clear it's Sotomayor who makes a big deal out of race." - Zarkov
People say that she will "use" race, and her racial preferences, to decide cases. She was part of two extremist pro-Hispanic race groups, right?
So how that that explain her decision in Ricci? She decided AGAINST a fellow Puerto Rican who was alleging discrimination in favor of a group of people from another race.
How was is "Summary Judgment affirmed" making a big deal out of race?
Perhaps it is time for a bipartisan group of senators to say they will vote against any nominee who punts on reasonable questions, regardless of ideology.
A Supreme Court nominee's judicial philosophy is most certainly relevant in assessing her nomination. Senators would not be satisfied with evasive answers in hearings on subjects like the Iraq war, or the auto industry bailouts -- so why should they accept them here?
That the hearings concern a coordinate branch of government is not an answer; the Senate is *supposed* to check the judiciary and the executive in this regard. Indeed, the checking function is so important that the Senate should arguably demand *more* data when scrutinizing nominees.
We would not accept evasive answers for everyday things like drivers' license exams, or for job interviews -- so why should we accept them when confirming one of the most powerful people in DC?
Perhaps this is a job for the Gang of 14.
Ok, now should it be the legislature or the courts that get the government out of it? And if it's not blindingly obvious that the answer cannot be the courts, why is it a bad question?
In an interview with the NY Times published a few days ago, Justice Ginsburg is quoted reflecting on the Court’s abortion jurisprudence as follows:
Questions:
1. Do you find anything offensive about the grounding of abortion rights in “concern about population growth and particularly growth in populations that we don’t want to have too many of?”
2. Whom do you think Justice Ginsburg meant to include in “populations that we don’t want to have too many of?”
3. Does your experience as a “wise Latina” shed any light on these questions?
4. Apart from any offensiveness of the policy itself, do you think it is a proper role of Supreme Court to find constitutional rights based on a wish to advance such policies?
Question 1: What is the proper role of foreign and international law in interpreting the United States Constitution?
Foreign and international law has no role in interpreting the United States Constitution with the limited exception of English common law because it was the framework within which the Founders drafted the language of our Constitution.
Question 2: What is the power of a federal court to interpret the law absent a "Case" or "Controversy"?
There is no such power.
Question 3: How much should courts defer to the judgment of Congress and the Executive Branch in the area of national security?
Courts should apply the law as written and if the law does not provide sufficient scope for the President's judgments, then the President should ask Congress to amend the law. Of course, Senator, you're simply dodging the real question here, which is what should the courts do when the President and the Congress disagree with each other on an issue in some way related to national security.
Question 4: What is the role of statutory text in statutory interpretation?
The text of a statute is the primary indicator of the statute's meaning and, where that text is clear, the determinative indicator of the statute's meaning.
Question 5: Are there any limits to the power of Congress under Article I, Section 8 of the Constitution?
There are any number of limits. It does not, for example, give Congress the power to appoint Supreme Court Justices or to pardon offenses against the United States.
I would ask you, Senator, if you think the courts ought to defer to the President or Congress on this issue more or less than on issues of national security, and where in the text of the Constitution you find a basis for distinguishing the court's level of deference.
Question 6: What is the role of original intent and originial public meaning in constitutional interpretation?
Those are two separate questions, since the original intent and the original public meaning are two different things. I would say the latter is the primary indicator of meaning in constitutional interpretation, recognizing however, that stare decisis also plays a role here and recognizing that, in many cases, original understanding doesn't tell you the answer to the question that's before the court.
Question 7: How can a judge objectively apply the law if she believes there are multiple realities and multiple versions of the truth?
I have no idea, since I don't believe there are "multiple realities and multiple versions of the truth" and I have no idea how someone who did believe those things would think.
Question 8: Does Judge Sotomayor believe that the firefighters' claims in Ricci v. DeStefano are routine and not worthy of careful treatment?
I think all claims before the federal courts are worthy of careful treatment, but as to Mr. Ricci in particular, you'd have to ask Judge Sotomayor or one of the other judges involved in that case.
Question 9: Are judges supposed to update the law to reflect changing social policy?
Congress actually requires that courts to do that in a number of cases, for example the federal law of privilege, or expects it by dint of longstanding practice, for example in the case of antitrust law. Where the law requires or permits such "updating" the courts should do it. Where the law prohibits such "updating" the courts should not do it.
Question 10: What did Judge Sotomayor mean when she agreed that the Second Amendment does not protect a fundamental right?
You'd have to ask Judge Sotomayor.
Question 11: How should courts measure the Government's need to protect the public safety against the threat of terrorism?
By applying the law as written, including the Bill of Rights. If the government feels that statutes or regulations should be different, it can amend the law.
Question 12: Does Judge Sotomayor continue to believe that the city of New Haven should have been allowed to scrap the results of its firefighter exam on the basis of race?
You'd have to ask Judge Sotomayor.
Question 13: Does the Takings Clause provide any limits on the power of the government to take private property?
Certainly. Where the property is taken for a public use, then just compensation must be paid.
Question 14: Has the Supreme Court made any missteps in the last fifty years that might justify public skepticism about lawyers and the courts?
No. All institutions staffed by human beings make mistakes, because humans are fallible. People should be skeptical about the Supreme Court because they should be skeptical about all government institutions, including the Presidency, the Congress and state governments, but not because the people in them make mistakes. That's to be expected from time to time.
Question 15: Is the Constitution color-blind?
It is not only race blind, but also gender blind, religion blind, sexual orientation blind, etc.
Question 16: Should the Constitution be interpreted to allow the death penalty, and if so, under what limitations?
The Constitution does allow the death penalty except in the rare cases where it would constitute cruel and unusual punishment or in the case of a failure of due process (e.g. trying a person who is in a coma then executing him based on the conviction in that trial).
Question 17: Should constitutional interpretation resemble common law decisionmaking?
It always has. I see no reason why that should change. Do you have some other model to propose?
Question 18: What limits does the First Amendment impose on campaign finance regulation?
The First Amendment prohibits the government from impairing the exercise of free speech. To the extent that campaign finance regulation impairs speech, it is prohibited by the First Amendment and to the extent that it does not, it is not so prohibited. Of course, the hard part is deciding where that line is drawn. I'm sure, Senator, you would not suggest that the First Amendment protects the ability of someone to offer a Senator a bribe in return for his vote on a particular bill.
Question 19: What is the proper role of judges in defining marriage and the family?
The same as the proper role of Congress and the Presidency, Senator, namely no role.
Question 20: What is Judge Sotomayor's judicial philosophy?
You'd have to ask Judge Sotomayor.
WHAT DO YOU MEAN THE SENATE DIDN'T CONFIRM ME????? HEY I DIDN'T WALK IN HERE TALKING ABOUT INTELLECTUAL FEASTS OR ANYTHING!!! I DEMAND A RECOUNT!!!
Or, more accurately, not quite the zinger that Kerr seems to think. I doubt Cornyn has spent more than 10 minutes in his entire life thinking about the Case or Controversy limit on federal court jurisdiction before getting briefed for this hearing.
Well I think it is fairly obvious that you cannot square the constitutional norms - (i) forbidding an establishment of religion (which applies to the states as well now) and also perhaps (ii) that no person shall be denied equal protection of the law - with the prohibition on gay marriage. If the law was that no pagan shall marry a Christian because that was the traditional definition of marriage, I don't think we would have trouble seeing that this violates the prohibition against establishing religion. There has to be a neutral, non-religious justification for a law to withstand an attack of that kind, and that simply doesn't exist with gay marriage: "tradition" is no good because that tradition is religious.
Add the additional premise that the courts have power to invalidate unconstitutional laws, and I think it's obvious that the courts may address this issue. That's not to say that Congress and local governments cannot also have a role in dismantling this barbaric discrimination, but if my assumptions are correct the court has power here too.
But let's ignore all that, and say there is an argument as to whether the court would have power. I still would not believe that Cornyn asked this question out of genuine curiosity as to "the respective functions of the branches of government." I'm willing to bet that Cornyn has no problem with policy making by federal courts when it suits his tastes. And I don't have a problem with that per se - I just think the debate should be about the norms themselves rather than confusing it with Ely-esque debates about the proper function of courts, which is just a diversion in my view.
Prior to his Senate election, John Cornyn spent 7 years on the Texas Supreme Court and 4 years as Texas Attorney General. I am guessing as such he has thought about the "case or controvery requirement," unless you can persuade me that the Texas Supreme Court regularly gives advisory opinions.
Ugh, I still think you are damning the question because you don't like the person asking the question--which does not address the substance of whether the question itself, is good. As to your hypothetical, it wouldn't have mattered if John Stennis or John Kennedy asked the question about "negroes" in 1960.
Professor Kerr's first name is "Orin."
While I would not dare besmirch Sen. Cornyn's good name, I think that Cornellian is dead-on in his analysis of question 2. As written, it is simply (at most?) an introduction into Art. III standing, which should be easy, and to take a dimmer view of it, is the type of question that can be dismissed with a simple "None."
I think OK/Cornyn were trying to get at the issue of dicta and Judges raising issues not before them (see also Kavanaugh and his Appointments Clause jones). That's an interesting question. You might want to ask that of Scalia and Thomas as well (see also Gonzales V. Carhart, effect of Commerce Clause not raised). The point being is that Judges do have a tendency to do this, sometimes as a signal to the political process (mentioning that something is a silly law that the legislature should revise) or the litigants for the future (Kavanaugh, again); whether this is good or bad is a separate issue.
No need. Your name is already an all-purpose disclaimer.
The Case or Controversy requirement applies only to federal courts. There is no requirement in the US Constitution that state courts be restricted to cases or controversies. I Googled "texas supreme court jurisdiction" and found my way to Article V of the Texas Constitution, which describes the judicial branch. If there's a case or controversy requirement in there, it's buried somewhere in some very lengthy verbiage.
I hate to disappoint, but I've never really listened to that "popular Greek orator." As for "riffing without attribution," a Google search of the phrase "has never been and will never be", in quotations, yields about 29 million results. There are only so many words in the English language. Nice try, though.
Cornellian, I think your suggested answers to Cornyn's 20 questions are absolutely spot on. But I also think Dave N has the better of the argument on Cornyn's lawyerly skills regarding U.S. Const. Art. III and otherwise. While I detect Orin Kerr's smarts all through the 20 questions (as you suggest), Cornyn is a smart and savvy lawyer himself who will require no handholding on these topics with Sotomayor.
It's great that they're following the book on this and to be frank that provides cover for others to do the things that will actually be effective and do a public service. That boils down to letting as many people as possible know about her past and have them contact their political reps. And, at the same time, show how her defenders are lying or misleading. You can see an example of me doing the latter here.
I'm sure Cornyn doesn't think he's going to set cable news networks on fire with the issue of whether it's appropriate for a judge to issue dicta in a decision finding a lack of subject matter jurisdiction.
Well, courts have been engaged in defining marriage in a way that folks on both sides have strong feelings about. It's certainly a valid question, whether or not you think he is using gays as a politcal tool.
The arguments of Plato, Aristotle, Kant, et al. were all religious? I'd like to see a citation to a scholarly article for such an extraordinary claim.
24ahead,
So why did she vote AGAINST Ben Vargas, a Puerto Rican?
Can you show me any cases where she voted FOR a fellow Puerto Rican?
Because if she's 0-1 on voting for Puerto Ricans, that's not exactly what you'd expect from a radical extreme far-left racial powergroup Puerto Rican supremacist.
That's like asking why a black radical would be opposed to Clarence Thomas.
The concept is that she's a member of two racial power groups, not a member of two races. It's entirely possible for someone to be a member of the race and opposed to the interests of the racial power group.
The best theory I've heard is that Republican Senators know they have a hopeless case, and they are just throwing a little red meat to their hard corps constituents.
Too bad for my clients. If Sotomayor failed (which she won't), the next nominee would likely have at least a little less conservative in criminal cases.
We should all probably just get used to saying, "Justice Sotomayor" for the next couple decades.
In this regard, Judge Sotomayor seems to be in agreement with the SCOTUS up to this very day. The second amendment has never been incorporated against the states, no? Could this be the case if the SCOTUS considered the second amendment to protect a fundamental right? Just wondering.
How fortunate, then, that the current nominee is qualified by these criteria.
It is hardly "fairly obvious". The constitution does not prohibit differential treatment based on gender nor does opposition to gay marriage need to be religiously grounded.
But if you're free to assume your conclusions, then of course you will always be correct.
Your copy of the 14A must be different than mine.
"So how that that explain her decision in Ricci? She decided AGAINST a fellow Puerto Rican who was alleging discrimination in favor of a group of people from another race."
Why would you think she would identify with the one white Puerto Rican who qualified against greater number who didn't?
Have you had Constitutional Law? The court has different levels of scrutiny under the 14th amendment depending on the category of discrimination.
Racial/ethnicity/alienage get strict, gender intermediate, and a bunch of stuff gets rational basis.
Your copy of the 14A must be different than mine.
Nothing in the text of the 14th Amendment restricts its application to racial classifications.
You, however, seemed to suggested [with your "wise Latina" comment] that it's all right, even preferred, for a court of appeals judge to embrace there own prejudices and emotions in deciding the outcome of appeals. Why?
Are you implying that the 14A includes gender? If so, your copy of the 14A must be different than mine.
The text of the 14th Amendment explicitly treats the genders inequitably - only males count for representation and only males are guaranteed the franchise. So while the 14A isn't restricted to race, the equal protections guarantee certainly doesn't extend to gender.
Volokh.com normally attracts a high quality of commenter. You, Marc Thomas, seem to suggest with your question that it's all right, even preferred, for commenters to continue to make stupid aspersions on others from out-of-context quotes. Do you think that you, Marc Thomas, would be able to survive a SCOTUS confirmation process, with all the partisan backsniping, knowing that even if you were a moderate, mainstream judge, there would be people looking through every paper you've ever written, even through high school, to find any nuanced comments that they pull out to make you look as bad as possible?
How about:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Expressly dealing with the provision you name. It would seem as a textual matter that since the only reference to sex in the 14th was overruled by Amendment, the EPC, by its text, would apply to gender classifications as well.
Yes, just as we've gotten used to saying, "Justice Miers". Oh, wait. That didn't happen, because she had competent opponents.
Also, it would be great if volokh.com would print Psalm91's IP address, because his shtick of misleading about my comments is something he's done here and elsewhere. I've pointed out that he's lying, and he just keeps on lying under a different name.
As for one of the groups SS joined, compare my coverage of the NCLR to what you've heard from others. I've mentioned them in over 150 posts since 2004, and I'll tell you the things you need to know about them and - just as important - I'll tell you how to oppose them in the correct way.
You quote section 2, but the equal protection clause is found in section 1 of the 14th Amendment. Section 1 states, in part, "Nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the law."
You can argue that the 14th Amendment doesn't protect gender classifications, but you can't argue (not successfully anyway) that such a restriction is found in the text of the equal protection clause.
"hard corps constituents"
Nice coinage. Keep up your good work - the public needs more good defenders.
I didn't argue it was found in the equal protection clause, I argued that the 14th Amendment on the whole can't be read to include gender as a category that receives equal protection by virtue of the fact that other sections of the 14th Amendment treat the genders differently.
Nor do I think the 19th Amendment can be read as applying equal protection to genders, only to as striking down the gender inequalities that the 14th Amendment explicitly codified.
I didn't argue it was found in the equal protection clause, I argued that the 14th Amendment on the whole can't be read to include gender as a category that receives equal protection by virtue of the fact that other sections of the 14th Amendment treat the genders differently.
I would think that the difference between "all persons" in section 1 and "male citizens" in section 2 was not an accident.
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
2. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
3. nor shall any State deprive any person of life, liberty, or property, without due process of law
4. nor deny to any person within its jurisdiction the equal protection of the laws.
Now, if clause 4 (the EPC) does not protect against gender discrimination so that "person" really means "man," what does this do to the other 3 clauses? Can the U.S. arbitrarily deny citizenship to women? Can a state enforce a law that abridges the privileges or immunities of female citizens? Can a state deprive a woman of life, liberty or property without due process? If so, why did the amendment use "person" instead of "man" as section 2 does?
A more logical approach would be to suggest that voting has special legal status in the same way that serving on a jury or serving in the militia or military do.
"I'm told I'm Hispanic, but I can't verify that personally because, like Stephen Colbert and the Constitution, I can't see race."
It's sad that so much of what passes for conservative thought these days is little more than a weak imitation of Stephen Colbert.
Not tradition for tradition's sake, but the tradition is rooted in public policy reasons that are not necessarily religious (after all, the Bible contains examples of polygamy).
nor would upholding an interpretation of Kant's categorical imperative
If the Court can uphold such metaphysical vacuousness as "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," then surely Kant's categorical imperative can pass muster.
Judge Sotomayor, you've been sitting on the federal bench for decades, and obviously during this time you've interacted with dozens and dozens of your peer federal judges, men and women who gained intimate knowledge of your professional performance and temperament. Why is it that not one of those dozens of your peers has stepped forward to vouch for you during this confirmation hearing?
There's certainly an acceptable answer to this question, and mostly, I'd like to see the congresscritters clear this up as a future precedent. Maybe they're doing so implicitly, but better to do it explicitly, imo.
Because if I were an Article III judge with lifetime tenure, nothing would get me within 50 miles of the Capitol building short of a subpoena?
21). What is your opinion on motherhood?
22). What is your opinion on apple pie?
23). What is your opinion on Freedom Fries?
(the last just to sate the curiosity of the Republicans who care about such things)
What a Load'O'Crapola™...
Lots of stoopid (and loaded) questions (and a couple "straw men" tossed in for good measure) about Republican "Judicial activism! Judicial activism!!!" talking points and sound bites.
There's no simple answer to these, and even less so when there's NO FACTUAL BASIS to even evaluate the issues.
On many of the underlying disputes he seeks answers on here, there has been continuing and extensive debate and discourse (not to mention disagreement), filling loads of journals, texts, and opinions. How (and why) he expects a "sound bite" answer to all of this in his allotted 10 minutes is beyond me.
He [Cornyn] may disagree with Sotomayor on many of the underlying issues, but SFW? He's not being nominated and we don't have to choose between the two of them (thank goodness). He should just shut up and vote against her when the time comes for us to care about his opinion.
Cheers,
What is the role of ALJ articles, restatements, model codes, and such in interpreting the U.S. Constitution? What is the role of decisions of other states' high courts on similar matters in evaluating similar claims in their own state courts? NIHSCGFI.
Question 2: What is the power of a federal court to interpret the law absent a "Case" or "Controversy"?
Objection, your Honour, assumes cases not on the docket.
Question 3: How much should courts defer to the judgment of Congress and the Executive Branch in the area of national security?
As much as they can as long as the co-ordinate branches follow the law. But the latter is a matter for the courts to decide.
Question 4: What is the role of statutory text in statutory interpretation?
It should be used as statutory text under the canonical laws of construction.
Question 5: Are there any limits to the power of Congress under Article I, Section 8 of the Constitution?
Yes. They may not repeal Newton's laws of gravity.
Question 6: What is the role of original intent and originial public meaning in constitutional interpretation?
One source of (sometimes unreliable or even unknowable) information.
Question 7: How can a judge objectively apply the law if she believes there are multiple realities and multiple versions of the truth?
Which reality would you like me to respond from? Tell you what, I'll see you there, and you can get the appropriate answer that way. Meanwhile, here on planet earth....
This is truly one of the most loaded and eedjeeootic questions on the list....
Question 8: Does Judge Sotomayor believe that the firefighters' claims in Ricci v. DeStefano are routine and not worthy of careful treatment?
Did she ever say such a thing?
Question 9: Are judges supposed to update the law to reflect changing social policy?
Are judges supposed to update the law to reflect changing forensic science realities? Or just ignore them?
Question 10: What did Judge Sotomayor mean when she agreed that the Second Amendment does not protect a fundamental right?
Where did she say that? For that matter, where does the 2nd Amendment say that?
Question 11: How should courts measure the Government's need to protect the public safety against the threat of terrorism?
By following the Constitution and the law.
Question 12: Does Judge Sotomayor continue to believe that the city of New Haven should have been allowed to scrap the results of its firefighter exam on the basis of race?
Four Supreme Court justices thought so. She'll fit right in if she does.
Question 13: Does the Takings Clause provide any limits on the power of the government to take private property?
Yes. Stoopid question. Next?
Question 14: Has the Supreme Court made any missteps in the last fifty years that might justify public skepticism about lawyers and the courts?
Yes. Dubya v. Gore was atrocious and cast a long pall on the integrity of the court.
Question 15: Is the Constitution color-blind?
No. See, e.g., Amendment XV.
Question 16: Should the Constitution be interpreted to allow the death penalty, and if so, under what limitations?
Yes (as long as the method is not cruel or unusual, along with a number of other caveats). But it should be abolished.
Question 17: Should constitutional interpretation resemble common law decisionmaking?
Why not? That's what it is (absent newly enacted amendments).
Question 18: What limits does the First Amendment impose on campaign finance regulation?
Corporations are not people. Money is not speech.
Question 19: What is the proper role of judges in defining marriage and the family?
On the federal level, none.
Question 20: What is Judge Sotomayor's judicial philosophy?
Superior to that of John Cornyn.
Cheers,
Huh. So there's no 1st amendment problem with, say, making it a crime to spend money advocating the election of a Democrat? Or to spend money advocating the pro-choice position?
I do like the comment above to the effect that giving "money" the same privileges as "speech" could be used to justify bribes to politicians as constitutionally protected. What say you?
Cheers,
Nobody has suggested that "money" has the same privileges as "speech". The arguement that "giving money" is an expressive act is a straw man. People don't give money to politicians directly, they contribute to the "committee to re-elect Senator muck-de-muck" or they just run the adds themselves. So campain-finance regulations don't outlaw giving money to politicians, they outlaw spending money for the purpose of advocating the election of politicians. That is why you have first amendment problems.
That said, there's quite a bit more to the conundrum, but as I pointed out in my first post, all these vague "sound bite" questions sans a factual predicate on which to evaluate them are basically stoopid (and loaded) questions -- asked for political effect, not enlightenment (particularly given time constraints and resource constaints of a nominee in front of a senate committee). Do you think that these are serious questions? Ferinstance, Questions 2 and 7? Are they worthy of the Senate's time?
Cheers,
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