Supreme Court nominee Sonia Sotomayor has dealt with few cases related to national security as a judge on the 2nd U.S. Circuit Court of Appeals. And, under questioning Tuesday, she gave little hint how she would rule in such cases.
"I haven't had a sufficient number of cases in this area to say," Sotomayor said in response to one question during the second day of her confirmation hearing before the Senate Judiciary Committee. "Each situation would have to be looked at" on an individual basis, she added, and there would be little point in having an "academic discussion" about potential cases.
Sen. Russ Feingold, D-Wis., tried in several ways -- largely without success -- to get a sense of Sotomayor's thinking on issues such as interrogation techniques, government surveillance and the secrecy regarding anti-terrorism programs.
Feingold asked Sotomayor whether she found it "odd" that Justice Department memos regarding torture did not mention the seminal 1952 Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer, regarding the limits of executive power.
"I have never been an adviser to a president," Sotomayor replied. "That's not a function I have served, so I don't want to comment on what has been done or not done."
In response to another question about the secrecy of memos from the Justice Department's Office of Legal Counsel, Sotomayor said it was "difficult to speak from the abstract" about whether such memos should be kept confidential. "One has to think about what explanations the government has. There are so many issues a court would have to look at," she said.
Sotomayor did say that the Supreme Court ruled incorrectly in Korematsu v. United States, in which the Court upheld the internment of Japanese-Americans during World War II. "A judge should never rule from fear. A judge should rule from law and the Constitution," she said.
THE DIALOGUE ON PRECEDENT CONTINUES
Slowly but surely, Supreme Court nominee Sonia Sotomayor is trying today to undermine the argument Republican senators made yesterday: namely, that once she becomes a justice, she'll be unbound by the shackles of precedent that she has to live with now as an appeals court judge.
Sen. Herb Kohl, D-Wisc., asked her about the controversial 2005 decision in Kelo v. City of New London, which ruled that cities may take private homes in eminent domain for private development. "Kelo is now a precedent of the Court," she said. "I must follow it" as a judge on the 2nd Circuit. But if she becomes a justice on the Supreme Court, she continued, "I must give it the deference that the doctrine of stare decisis would suggest." A slightly different standard on the Supreme Court, in other words, but not one that forecasts a Justice Sotomayor upsetting precedents left and right.
Later, in a dialogue with Sen. Dianne Feinstein, D-Calif., Sotomayor elaborated on when she'd feel it appropriate to overturn a precedent as a Supreme Court justice. She said she would start from the premise that stare decisis is important. "There is a value ... in predictability, stability" of the law for all society, she said. Before dispensing with a precedent, she said justices should be "guided by the humility they should show, and the thinking of prior judges." She added, "There are circumstances in which a court should re-examine precedent, but it should be done very very cautiously." Also: "It's important to recognize that the development of the law is step by step, case by case."
ON CAMERAS AND COLLEGIALITY
Ninety minutes into the questioning of Supreme Court nominee Sonia Sotomayor, a senator has asked her the inevitable question whether she would like to see cameras in the Supreme Court. The court on which she now sits, the 2nd U.S. Circuit Court of Appeals, allows cameras to record its proceedings, but the Supreme Court has resisted the idea for decades. Sotomayor answered the question from Sen. Herb Kohl, D-Wisc., diplomatically, with seeming support for the idea but a nod toward the collegiality of the Court on which she may soon sit.
"I have had positive experiences with cameras," Sotomayor said. "I have participated. I have volunteered."
But then she said that whenever she enters a new work setting, she values collegiality highly and wants to "listen to the arguments of my colleagues" before urging changes in procedure or practice. "I try to share my experiences and my thoughts and be collegial." But when Kohl persisted, Sotomayor said that as a former litigator, she knows how to be convincing. Perhaps, she hinted, as a "new voice in the discussion," she can be persuasive.
SOTOMAYOR TO SESSIONS: MY WORDS 'FELL FLAT'
Sen. Jeff Sessions, R-Ala., the ranking Republican on the Senate Judiciary Committee, has elicited what may be the first confession of error from Supreme Court nominee Sonia Sotomayor. Sessions grilled her about her "wise Latina" remark, as well as a statement that her life experiences would affect the facts she hears.
Sotomayor said she was playing off Justice Sandra Day O'Connor's oft-repeated statement that a wise woman and a wise man would reach the same decision. But her play on that comment was a "rhetorical flourish that fell flat," she said. "My play fell flat. It was bad."
Sotomayor's slow, measured responses have been calm even as Sessions has challenged her very pointedly. She acknowledged that "life experiences are important to the process of judging," but added, "the law commands the result."
SOTOMAYOR TACKLES CONTROVERSIES RIGHT OFF THE BAT
Sen. Patrick Leahy, D-Vt., did not wait for Republicans to raise the controversial issues that have swirled around Supreme Court nominee Sonia Sotomayor. In the first round of questioning Tuesday morning, Leahy has asked her about the New Haven firefighters case Ricci v. DeStefano, her "wise Latina" remark, and the D.C. v. Heller Second Amendment case.
On both Ricci and Heller, Sotomayor insisted that her decisions were dictated by clear precedent. In the New Haven case, she said both a 2nd Circuit ruling and the 1991 amendments to the Civil Rights Act on "disparate impact" civil rights violations compelled the decision that New Haven was justified in refusing to certify a promotion test because African-Americans had not qualified under it. "We re obligated to follow established precedent," she said.
On the Second Amendment, she said her panel's ruling in Maloney v. Cuomo applied the Heller decision which explicitly left open the question whether the right to bear arms applies against the states.
As for the "wise Latina" remark -- that a wise Latina judge would make a better decision than a white male -- Sotomayor said she was trying to be inspirational to her audience and encourage them "to become anything they wanted to become, as I did." But she went on to state "up front," that no one ethnic group or gender has "an advantage in sound judgment." Everyone, she added, "has the equal opportunity to be a good and wise judge."
More generally, she told Leahy, "As a judge, I don't make law." The process of judging, she said, "is a process of keeping an open mind."
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