Checklist: Will Judge Sonia Be Asked Any Of These Questions?

Today's NY Fishwrap supplied a panel of 7 interrogators to ask the questions they would press upon Judge Sonia Sotomayor. Even Gonzo, the featherweight of the panel, asked sensible questions. Perhaps Mrs. Gonzo wrote them beforehand. Thank goodness Gonzo didn't turn to John Yoo or David Addington. If this is a (fair & balanced) list of confirmation hearing queries, so be it.

[x NY Fishwrap]
Questions For Judge Sotomayor
By Kathleen M. Sullivan, Michael Chertoff, Stephen L. Carter, Alberto Gonzales, Ann Althouse, Ronald Dworkin, and James McGregor Burns

Judge Sonia Sotomayor, President Obama’s nominee for the Supreme Court, is scheduled to appear today at a confirmation hearing before the Senate Judiciary Committee. The Op-Ed editors asked seven legal experts to pose the questions they would like to hear the nominee answer.

Kathleen M. Sullivan, a professor of law at Stanford, asked:

1. Advocacy of “states’ rights” has long been considered a hallmark of conservative judicial philosophy. Recently, however, we have seen the advent of what might be called “blue states’ rights,” as progressive states seek to provide greater consumer, environmental and antidiscrimination protection than the federal government, while business seeks to strike down such measures as pre-empted by federal law.

What is your view of the role of federalism in our constitutional system? And how has that view affected your rulings in the cases that have come before you concerning whether federal laws pre-empt state laws or causes of action?

2. The Supreme Court has issued four major decisions since 9/11 invalidating the president’s and Congress’s efforts to detain and try “enemy combatants” according to procedures that depart from traditions of military justice and the rule of law. And yet since 9/11, not a single enemy combatant has been tried to judgment by military tribunal or released over executive branch objection. How will history view the Supreme Court’s decisions in this area — as a success for the principles they announced or a failure for the results they achieved? What is your view of the role of the court in ensuring the separation of powers? Has that view varied in times of national emergency?
—
Michael Chertoff, a secretary of homeland security under George W. Bush, asked:

1. If confirmed, you will be the only member of the Supreme Court who was a federal trial judge. You know that the factual findings of a trial judge or jury are based on a carefully assembled body of evidence. In your opinion, to what degree is an appeals judge confined by that evidential record in reaching decisions? When, if ever, is it appropriate for an appellate judge to rely upon other, extrinsic sources — like social science studies, polls or academic writings — in deciding a case?

2. When a court interprets an international treaty or deals with an international dispute, it is not uncommon to consider international law. More controversial is the practice of some judges to look to foreign law for assistance in interpreting provisions of purely American law, like the Constitution. Putting aside English law that existed at the time the Constitution was framed, what use, if any, should be made of foreign law in interpreting the Constitution?

3. From time to time a judge confronts a situation where a fair reading of the law points to a decision that conflicts with the judge’s personal views or sympathies. Please give three examples of judgments you rendered based on interpretation of the law, even though the outcomes were at odds with your individual views or sympathies.
—
Stephen L. Carter, a professor of law at Yale and the author of the forthcoming "Jericho’s Fall," asked:

1. Many of the questions you will be asked during the hearing will be designed to elicit your view on cases likely to come before you on the court. Over the years, nominees have handled these questions in different ways. No member of the current court responded to these questions in any detail. Is predicting the votes of potential justices a proper role for either the president or the Senate? If not, what are the factors you believe should be taken into account?

2. Even though you cannot give us your view on cases likely to come before you if you are confirmed, we nevertheless need to understand your view of the Supreme Court as an institution. Could you please tell us which justice, excluding current members of the court, you most admire, and why?

3. There was a time when the majority and the dissenters on the court went out of their way to be respectful toward each other. Even in so divisive a case as Miranda v. Arizona in 1966, the dissenters, who thought the result simply terrible, seemed to write more in sorrow than in anger. Now some members have taken to sniping at each other regularly in their opinions, particularly in the footnotes. What do you think is the cause of this trend? If confirmed, what might you do to help stop it?
—
Alberto Gonzales, the United States attorney general from 2005 to 2007, asked:

1. Given your public remarks about the importance of judges showing compassion, do you believe there is a difference between doing justice and applying the law?

2. Some overseas critics have questioned the legality of United States government policies on the war on terrorism. Should America’s standing in the world, to the extent it may be affected by the outcome of a case, ever inform a judicial decision?

3. How important is emphasis on precedent in Supreme Court decision-making? Under what circumstances would you vote to overturn an earlier Supreme Court opinion? Would it be enough that you did not view the case to have been rightly decided? Does it matter how well known it is or how much public reliance there has been on the decision?
—
Ann Althouse, a professor of law at the University of Wisconsin, asked:

1. When you said you hoped that “a wise Latina” would make better judicial decisions, did you mean it as a pleasantry aimed at people who had invited you to speak about diversity or will you now defend the idea that decision-making on the Supreme Court is enhanced by an array of justices representing different backgrounds?

2. If a diverse array of justices is desirable, should we not be concerned that if you are confirmed, six out of the nine justices will be Roman Catholics, or is it somehow wrong to start paying attention to the extreme overrepresentation of Catholicism on the court at the moment when we have our first Hispanic nominee?
—
Ronald Dworkin, a professor of law at New York University, asked:

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?
—
James MacGregor Burns, the author of "Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court," asked:

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? Ω

[Kathleen M. Sullivan served as the eleventh dean of Stanford Law School (1999-2004) and the first woman dean of any school at Stanford. Michael Chertoff served as a judge on the United States Court of Appeals, as a federal prosecutor, and as assistant U.S. Attorney General. Chertoff succeeded Tom Ridge as United States Secretary of Homeland Security on February 15, 2005. Stephen L. Carter, after graduation from the Yale Law School, served as a law clerk for Judge Spottswood W. Robinson III of the United States Court of Appeals for the District of Columbia Circuit and, subsequently, for US Supreme Court Justice Thurgood Marshall. Alberto Gonzales will join the faculty of the Department of Political Science at Texas Tech University for the Fall 2009 term. Ann Althouse maintains a blog on Blogger. Ronald Dworkin, after graduation from Harvard Law School, subsequently clerked for Judge Learned Hand of the United States Court of Appeals for the Second Circuit. Judge Hand would later call Dworkin the finest clerk he ever employed, and Dworkin would recall Judge Hand as an enormously influential mentor. James McGregor Burns received a Pulitzer Prize and National Book Award in 1971 for his Roosevelt: Soldier of Freedom 1940-1945.]

Copyright © 2009 The New York Times Company

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