Sotomayor (and Hatch & Feingold) on Fundamental Rights and the 14th Amendment: I have posted the following on the WashingtonPost.com's "Topic A" commentary on today's hearings:

One of the things we hope to learn during confirmation hearings is a nominee's approach to the constitutional protection of liberty. But in her exchange with Sen. Orrin Hatch (R-Utah) about the second amendment and its potential application to the states, Sonia Sotomayor revealed remarkably little about her understanding of how the Supreme Court protects liberty under the fourteenth amendment. For example, more than once she said a right was "fundamental" if it was "incorporated" into the fourteenth amendment. But this gets it backwards. The Supreme Court incorporates a right BECAUSE it finds it to be fundamental. When asked how she understands the criteria by which the court concludes that a right is fundamental, she did not give a substantive response. Then, when Hatch asked her about the difference between nineteenth century precedent involving the privileges or immunities clause and the twentieth century cases involving the due process clause, she said she did not recall the cases well enough to address the difference. Indeed, in the per curium opinion she joined in Maloney, the panel did not address this crucial issue, in contrast with panels in the 9th and 7th Circuits.

In fairness, Hatch's questions were themselves both confused and confusing to anyone who did not know what he was trying to say. At one juncture, for example, he repeatedly referred to "the privileges AND immunities clause" (which is in Article IV of the constitution) and contrasted it with the fourteenth amendment. He seemed to be unaware that there is a privileges OR immunities clause in the fourteenth amendment itself, which the cases he was citing were about. However, I would have hoped that Sotomayor would have understood these cases -- which she had relied upon in her Maloney opinion -- as well as the discussion of this issue in the Supreme Court case of D.C. v. Heller well enough to have educated Hatch, as well as the rest of us, on this important aspect of Supreme Court doctrine.

As it stands, we know next to nothing about her understanding of this area. Hopefully, she will be given an opportunity to revisit this issue in future questioning and will elaborate on her views of how the fourteenth amendment protects liberty.

Here is her characterization of a "fundamental right":

SOTOMAYOR: Those rights have been incorporated against the states. The states must comply with them. So in -- to the extent that the court has held that...

HATCH: Right.

SOTOMAYOR: ... then they are -- they have been deemed fundamental, as that term is understood legally.

Here is the exchange that immediately preceded the previous answer in which she is asked to explain the criteria by which a right is deemed to be fundamental:

HATCH: Well, what's ... excuse me, I'm sorry. I didn't mean to interrupt you.

What's your understanding of the test or standard the Supreme Court has used to determine whether a right should be considered fundamental? I'm not asking a hypothetical here. I'm only asking about what the Supreme Court has said in the past on this question. I recall (inaudible) emphasizing that a right must be deeply rooted in our nation's history and tradition, that it is necessary to an Anglo- American regime of ordered liberty, or that it is an enduring American tradition.

I think I've cited that pretty accurately on what the court has held with regard to what is a fundamental right. Now, those are different formulations from the Supreme Court's decisions, but I think the common thread there is obvious. Now, is that your understanding of how the Supreme Court has evaluated whether a right should be deemed fundamental?

SOTOMAYOR: The Supreme Court's decision with respect to the Second Circuit incorporation -- Second Amendment incorporation doctrine is reliant on old precedent of the court, and I don't mean to use that as precedent that doesn't bind when I call it old. I'm talking about precedent that was passed in the 19th century.

Since that time, there is no question that different cases addressing different amendments of the Constitution have applied a different framework. And whether that framework and the language you quoted are precise or not, I haven't examined that framework in a while to know if that language is precise or not. I'm not suggesting it's not, Senator. I just can't affirm that description.

SOTOMAYOR; My point is, however, that once there's Supreme Court precedent directly on point, and Second Circuit precedent directly on point on a question, which there is on this incorporation doctrine and how it uses the word "fundamental," then my panel, which was unanimous on this point -- there were two other judges -- and at least one other -- or one other panel on the Seventh Circuit by Justice -- by Justice -- by Judge Easterbrook has agreed that, once you have settled precedent in an area, then, on a precise question, then the Supreme Court has to look at that.

And under the deference one gives to stare decisis and the factors one considers in deciding whether that older precedent should be changed or not, that's what the Supreme Court will do.

I just listened to an exchange on the same topic with Senator Russ Feingold, which left me with 2 impressions. First, Feingold was much more articulate about the constitutional questions than was Orren Hatch. And, second, Sotomayor is giving entirely nonanswer answers to every substantive question she is asked. Here is her response to a question about a line of cases:

FEINGOLD: I can understand some hesitance on this. But the truth is that courts are already dealing with these very issues.

The Supreme Court itself has now struck down a number of post- 9/11 policies. And you yourself sat on a panel that struck down one aspect of the National Security Letter statutes that were expanded by the Patriot Act.

So, I'd like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court's decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?

SOTOMAYOR: That the Court is doing its task as judges. It's looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.

Hmmm. Very interesting. Here is Feingold trying to get her understanding of the general approach to incorportion:

FEINGOLD: But what would be the general test for incorporation?

SOTOMAYOR: Well...

FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform -- as I said, I've hesitant of prejudging and saying they will or won't because that will be what the parties are going to be arguing in the litigation. But it is...

FEINGOLD: Well...

SOTOMAYOR: I'm sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has taken -- has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court's decision how it looks at a new challenge to a state regulation.

The last part of her answer may be my favorite response so far in the hearing. To this point, it is impossible to tell from her responses whether she knows anything about constitutional law OR whether she simply does not want to offer any opinions that could possibly be criticized. I do not recall a confirmation hearings in which so little of substance is revealed by a nominee.

Sotomayor Again Misstates Fundamental Rights Doctrine: As she did yesterday, Sotomayor asserted that a right is "fundamental" if it is "incorporated" against the states via the 14th Amendment rather than that a right is incorporated against the states if it is fundamental. She then claimed that Supreme Court precedent established that that the Second Amendment is not incorporated. This too is inaccurate. As Justice Scalia stated in Heller, the precedents refusing to apply the Second Amendment to the states (on which Sotomayor's panel relied in Maloney) did not address the modern "fundamental rights" doctrine. Judge Sotomayor's panel in the Second Circuit said nothing about the merits of the claim that the individual right to bear arms meets the modern test for identifying a fundamental right. Here is the relevant portion of the transcript

SOTOMAYOR: In the Supreme Court's decision in Heller, it recognized an individual rights to bear arms as a right guaranteed by the Second Amendment, an important right and one that limited the actions a federal — the federal government could take with respect to the possession of firearms. In that case we're talking about handguns.

The Maloney case presented a different question. And that was whether that individual right would limit the activities that states could do to regulate the possession of firearms. That question is addressed by a legal doctrine. That legal doctrine uses the word fundamental, but it doesn't have the same meaning that common people understand that word to mean. To most people, the word by its dictionary term is critically important, central, fundamental. It's sort of rock basis.

Those meanings are not how the law uses that term when it comes to what the states can do or not do. The term has a very specific legal meaning, which means is that amendment of the Constitution incorporated against the states.

COBURN: Through the 14th Amendment.

SOTOMAYOR: Through — and others. But the — generally. I shouldn't say and others, through the 14th. The question becomes whether and how that amendment of the Constitution, that protection applies or limits the states to act. In Maloney, the issue with — for us was a very narrow one. We recognized that Heller held — and it is the law of the land right now in the sense of precedent, that there is an individual right to bear arms as it applies to government, federal government regulation.

The question in Maloney was different for us. Was that right incorporated against states? And we determined that, given Supreme Court precedent, the precedent that had addressed that precise question and said it's not, so it wasn't fundamental in that legal doctrine sense. That was the Court's holding.

This is both a grossly incorrect (and empty) understanding of the doctrine governing the protection of fundamental rights and an inaccurate statement of the precedents concerning the incorporation of the right to keep and bear arms into the Due Process Clause of the Constitution.

To be clear, a court COULD take the position, as did Judge Easterbrook in the Seventh Circuit, that a Circuit Court of Appeals is not entitled to consider the fundamentality of the right to keep and bear arms under modern Due Process Clause doctrine in light of the Supreme Court's ruling in Heller because Nineteenth Century precedent said that the Second Amendment does not apply to the states--even though those precedents implicitly involved the Privileges or Immunities Clause. But, unlike the Seventh Circuit, the Judge Sotomayor's panel simply ignored this issue altogether. And of course the Ninth Circuit did consider this modern doctrine and concluded that the right to bear arms IS fundamental.