More Questions for Sotomayor:

The NYT publishes questions for Judge Sotomayor from Kathleen Sullivan, Michael Chertoff, Alberto Gonzales, Ann Althouse, James MacGregor Burns, Stephen Carter, and Ronald Dworkin.

martinned (mail) (www):
— RONALD DWORKIN, a professor of law at New York University

1. The Constitution is "not a static but rather a living document," Barack Obama wrote in "The Audacity of Hope," echoing Thomas Jefferson, "and must be read in the context of an ever-changing world." Do you agree? If so, how would you apply this idea to specific cases?

2. Do you believe that the Supreme Court has the constitutional authority to declare acts of Congress unconstitutional? Would you be in favor of a constitutional amendment establishing or rejecting once and for all the power of an unelected Supreme Court to veto acts of our elected Congress?

3. Throughout the court's history, it has often lagged behind the times, as lifetime appointees adhered to outdated ideologies and attitudes. Would you be in favor of requiring justices to retire at the age of 70?
7.13.2009 10:15am
martinned (mail) (www):
...aka, I love the idea of asking her about Marbury v Madison.
7.13.2009 10:30am
For example, the likely honest answers of an actual working judge to a series of questions recommended by an eminent authority:

Q: Does the Second Amendment protect an individual right to arms?

A: Pre-Heller -- yes, no, or I don't know and I'd like to see the arguments before I commit myself
Post-Heller-- Heller says so

Q: What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.)

A: Beats the shit out of me. I know what the Supreme Court said in the 1880's, for what that's worth.

Q: Does the 14th Amendment "incorporate" the Bill of Rights and, if so, how and why?

A: Yes. Atleast that's the Court's current methodology. Doctrinally, it's a mess, using the due process clause and incorporating only some of the protections of the Bill of Rights. But I doubt that using a different clause of the Constitution would make a practical difference. Nobody's going to rule that a state can establish a religion or that it must provide civil juries in $50 cases, and any theory that leads to those conclusions will properly be ignored.

Q: Does the Ninth Amendment protect judicially enforceable unenumerated rights?

A: I don't know. I've never seen a pure 9th Amendment case.

Q: Does the Necessary and Proper Clause delegate unlimited discretion to Congress?

A: No, but it does delegate a lot.

Q: Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

A: Art. I, Sec. 8(1). Damn few, but there are some, as the Court has ruled in the past.

These would be the honest answers of most mainstream potential appointees. No reason not to ask, but don't expect much.
7.13.2009 10:46am
Cato The Elder (mail) (www):
I'm watching the Sotomayor confirmation hearings right now, and I'm sickened by the blatant pandering to Hispanics all around, never doubt that politicians have little shame at all. Even if all the Left's hypocrisy about Miguel Estrada is correct, the issue shouldn't be of this magnitude. We're doomed, I tell you, doomed.
7.13.2009 11:30am
Boring. But typical of lawyers.

Here are some questions that non-lawyers might ask:

* Judge Sotomayor, how do you respond to those who feel that the law as written is less important to you than reaching what you call the 'right' decision? How many times, and can you provide examples where you ruled against those you have empathy with?

* How do you respond to those who are scared that you will rule against them because you lack empathy for them?

* How do you respond to those who are scared that your votes are determined not by right and wrong but rather by which side you deem more politically correct?

* Why should, for example, a black man feel that you will treat him and his family fairly if he has a dispute with an Hispanic woman? Or a straight woman in a dispute with a gay man? Or a business owner being sued by an employee? Or a police officer being sued by a criminal? Or a member of our armed forces being sued by a terrorist?
7.13.2009 12:11pm
byomtov (mail):
This is all very interesting, but I don't think there's ever been a shortage of questions, good, bad, or indifferent, for Court nominees.

The problem has been a lack of answers.

I don't know if Sotomayor is following the standard evasive script or not, but I hope she doesn't, and I hope that the Senate in general doesn't let future nominees get away with the kind of platitudinous non-answers we've been getting from recent nominees.
7.13.2009 12:27pm
H. L. Trisky (www):
We have posted our questions to Sotomayor as well as Nancy Northup's (president of Center for Reproductive Rights) urging that Congress not tap dance around the issue of choice.
It is very telling that not one question selected by the Times deals directly with abortion. It seems the Left is content to allow her views on abortion to remain hidden.

FemiSex linkl

"Today, in a prequel to SotoMaybe's upcoming confirmation hearings, FemiSex brings you a message from Nancy Northup, president of the Center for Reproductive Rights.

It deals with the fact that we have NO good information on Sonya Sotomayor's stand on abortion. Zip! We have no idea if she thinks Gonzales v. Carhart was wrongly decided. We have no idea is she is for or against parental consent laws. We have NO idea whatsoever on her position on abortions rights, other than, her rulings AGAINST abortions rights. (See our prior posts on SotoMayor for more on her prior rulings.)

And as Ms. Northup points out, the Senate is complicit in this act of unknowing when it comes to Supreme Court nominees and their stand on abortion rights. Time to end the Silence, says Northup. Have a listen:..."
7.13.2009 12:38pm
There was an interesting interview on NPR yesterday with Scot Powe about the history of Supreme Court confirmation hearings. See here.

A few tidbits (which I may be misremembering from hearing it in the car yesterday):

o The first confirmation hearing was for Louis Brandeis

o The first hearing at which the nominee appeared was for Felix Frankfurter. He said that it would be inappropriate for him to say anything that would add to or detract from his public record, and therefore refused to answer any questions

o Scalia was asked whether Marbury v. Madison was settled law, and he said that it would be inappropriate for him to answer because the issue might come before him as a Justice
7.13.2009 2:34pm
RPT (mail):
Alberto Gonzalez? What about David Addington, John Yoo, Jay Bybee and Jim Haynes? I'm sure that they have questions as well.
7.13.2009 2:35pm
Also, a minor correction: the questioner's name comes after the questions he or she submitted, so the questions listed in the first comment come not from Ronald Dworkin, but from James MacGregor Burns. Dworkin's questions (if you're curious, but not curious enough to click through) are:

1. The last two nominees told the Judiciary Committee that they could decide difficult constitutional cases just by applying the law. Critics say this is silly: often the text and history of crucial constitutional clauses and the court's past decisions aren't decisive either way, so that judges can interpret those clauses only by asking which reading, in their opinion, is best. They must finally rely on their own political convictions in making that judgment. Do you agree with these critics?

2. You have been criticized for your vote in the New Haven firefighters case. The case raised the crucial question of whether a city or state can use race-sensitive policies, short of quotas, to reduce racial inequality and tension. Do you see any moral or constitutional objection, in principle, to such policies?
7.13.2009 3:12pm
She is a sexist and a racist, by her own admission. If nothing else, pershaps her confirmation will expose that such characteristics are not exclusive to white men.
7.13.2009 3:21pm
Cornellian (mail):
Judge Sotomayor, how do you respond to those who feel that the law as written is less important to you than reaching what you call the 'right' decision?

I'd respond to those people by saying "congratulations, you feel like like every lawyer who's ever set foot in front of a judge."
7.14.2009 1:30am
Cornellian (mail):
The first hearing at which the nominee appeared was for Felix Frankfurter. He said that it would be inappropriate for him to say anything that would add to or detract from his public record, and therefore refused to answer any questions

That is just awesome on so many levels.

It also supports my point that politicians make terrible judges and judges make terrible politicians. Judges ought to say nothing in public and politicians are notoriously a group of people who are never able to shut up.
7.14.2009 1:32am

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