The Volokh Conspiracy - Cornyn: A Confirmation Conversion?

From Senator Cornyn's questioning of Judge Sonia Sotomayor today:

the purpose of these hearings is — as you've gone through these tedious rounds of questioning, is to allow us to clear up any confusion about your record and about your judicial philosophy, yet so far I find there's still some confusion.

For example, in 1996, you said the idea of a stable, quote, "capital L Law" was a public myth. This week, you said that fidelity to the law is your only concern.

In 1996, you argued that indefiniteness in the law was a good thing because it allowed judges to change the law. Today you characterized that argument as being only that ambiguity can't exist and that it is Congress's job to change the law.

In 2001, you said that innate physiological differences of judges would or could impact their decisions. Yesterday, you characterized that argument as being only that innate physiological differences of litigants could change decisions. In 2001, you disagreed explicitly with Justice O'Connor's view of whether a wise man and wise woman would reach the same decision. Yet, during these hearings, you characterized your argument as being that you agreed with her.

A few weeks ago, in your speech on foreign law to the American Civil Liberties Union, you rejected the approach of Justices Alito and Thomas with regard to foreign law, and yet it seems to me, during these hearings, you have agreed with them.

So, Judge, what should I tell my constituents who are watching these hearings and saying to themselves, "In Berkeley and other places around the country, she says one thing, but at these hearings, you are saying something which sounds contradictory, if not diametrically opposed, to some of the things you've said in speeches around the country"?

UPDATE: Judge Sotomayor's response (available at the same link above):

I would tell them to look at my decisions for 17 years and note that, in every one of them, I have done what I say that I so firmly believe in. I prove my fidelity to the law, the fact that I do not permit personal views, sympathies or prejudices to influence the outcome of cases, rejecting the challenges of numerous plaintiffs with undisputably sympathetic claims, but ruling the way I have on the basis of law rejecting those claims, I would ask them to look at the speeches completely, to read what their context was and to understand the background of those issues that are being discussed.

I didn't disagree with what I understood was the basic premise that Justice O'Connor was making, which was that being a man or a woman doesn't affect the capacity of someone to judge fairly or wisely. What I disagreed was with the literal meaning of her words because neither of us meant the literal meaning of our words. My use of her words was pretty bad in terms of leaving a bad impression. But both of us were talking about the value of experience and the fact that it gives you equal capacity.

In the end, I would tell your constituents, Senators, look at my record and understand that my record talks about who I am as a person, what I believe in and my judgment and my opinion. But following the rule of law is the foundation of our system of justice.

	[Jonathan Adler, July 16, 2009 at 1:09pm] Trackbacks Cornyn: A Confirmation Conversion? From Senator Cornyn's questioning of Judge Sonia Sotomayor today: the purpose of these hearings is — as you've gone through these tedious rounds of questioning, is to allow us to clear up any confusion about your record and about your judicial philosophy, yet so far I find there's still some confusion. For example, in 1996, you said the idea of a stable, quote, "capital L Law" was a public myth. This week, you said that fidelity to the law is your only concern. In 1996, you argued that indefiniteness in the law was a good thing because it allowed judges to change the law. Today you characterized that argument as being only that ambiguity can't exist and that it is Congress's job to change the law. In 2001, you said that innate physiological differences of judges would or could impact their decisions. Yesterday, you characterized that argument as being only that innate physiological differences of litigants could change decisions. In 2001, you disagreed explicitly with Justice O'Connor's view of whether a wise man and wise woman would reach the same decision. Yet, during these hearings, you characterized your argument as being that you agreed with her. A few weeks ago, in your speech on foreign law to the American Civil Liberties Union, you rejected the approach of Justices Alito and Thomas with regard to foreign law, and yet it seems to me, during these hearings, you have agreed with them. So, Judge, what should I tell my constituents who are watching these hearings and saying to themselves, "In Berkeley and other places around the country, she says one thing, but at these hearings, you are saying something which sounds contradictory, if not diametrically opposed, to some of the things you've said in speeches around the country"? UPDATE: Judge Sotomayor's response (available at the same link above): I would tell them to look at my decisions for 17 years and note that, in every one of them, I have done what I say that I so firmly believe in. I prove my fidelity to the law, the fact that I do not permit personal views, sympathies or prejudices to influence the outcome of cases, rejecting the challenges of numerous plaintiffs with undisputably sympathetic claims, but ruling the way I have on the basis of law rejecting those claims, I would ask them to look at the speeches completely, to read what their context was and to understand the background of those issues that are being discussed. I didn't disagree with what I understood was the basic premise that Justice O'Connor was making, which was that being a man or a woman doesn't affect the capacity of someone to judge fairly or wisely. What I disagreed was with the literal meaning of her words because neither of us meant the literal meaning of our words. My use of her words was pretty bad in terms of leaving a bad impression. But both of us were talking about the value of experience and the fact that it gives you equal capacity. In the end, I would tell your constituents, Senators, look at my record and understand that my record talks about who I am as a person, what I believe in and my judgment and my opinion. But following the rule of law is the foundation of our system of justice.