Sotomayor: Key Questions

Deborah O'Malley and Robert Alt cite "Key Questions for Sonia Sotomayor."

They lay out some of Sotomayor's statements and rulings in 10 areas. After providing the background explanations, they suggest the following questions:

Given these concerns about her judicial philosophy, fairness on the bench, and fidelity to the Constitution, Senators should ask Judge Sotomayor the following ten questions.

Question #1: Policy-Making from the Bench

Do you still believe that judges should be overhauling the law and making policy? If not, when did you change your position, and why did you say and write these things in 2005?

Question #2: Patriotic Bias?

Do you believe that following the judges' oath of office is a disservice to society? Do you believe that you are doing a disservice to the law if you impartially discharge your duties in a completely impartial manner?

Question #3: Respecting Judicial Procedure

Do you believe that your treatment of these cases was appropriate, particularly considering the fact that the Supreme Court not only found the case important enough to hear but also reversed you? Why did you refuse to address the serious legal issues at stake in these cases?

Question #4: The "Empathy" Standard

Do you agree with President Obama that empathy is a proper way to decide cases? If so, why was Ricci unworthy of your empathy--or even of a full opinion from your court?

Question #5: Physiological Differences and Identity Politics

Do you believe that there are physiological differences between ethnicities that affect reasoning? Why should we read the word better in your description of the decision of a Latina compared to other sexes and ethnicities--a word that you used repeatedly in print and verbally--as something other than what it actually means?

Question #6: Second Amendment Rights

Why did you fail to even consider the sort of inquiry that the Supreme Court said is required by the Fourteenth Amendment in your decision stripping Second Amendment protection from citizens in the Second Circuit? Do you believe that statutes restricting possession of weapons do not even implicate fundamental rights? How does that view comport with the text of the Second Amendment?

Question #7: Legal Realism

Do you believe that it is the role of judges and the courts to change the laws if they believe the law is outdated or needs changing? What prevents a judge from simply implementing her policy preferences in the place of legislature, and what recourse do citizens have when an unelected judge gets the policy question wrong?

Question #8: Importing Foreign Law

Apart from treaties that incorporate foreign law into U.S. domestic law, why do you think it is a good idea for judges to consider foreign law in deciding domestic law cases?

Question #9: Felon Voting

Do you believe that the VRA guarantees the rights of felons to vote? Do you believe that the VRA supercedes the right of states to deny the vote to criminals, as it is guaranteed in the Fourteenth Amendment?

Question #10: Death Penalty

Given your clear views against the death penalty, and your statements suggesting that judges cannot avoid expressing bias in most cases, why should Americans believe that you will not express your anti-death penalty bias on the Supreme Court?

They conclude:

Throughout her career, Judge Sotomayor has made a series of statements and rendered a number of decisions that raise grave questions about her ability to be impartial and to decide the law as it is written. Before she is confirmed to a lifetime appointment to the Supreme Court, Senators must engage in questions such as the 10 listed above to assure that she will be able to uphold her oath to impartially decide cases and that she will do so according to what the law says--rather than how she would seek to change the law. The American people, and the Constitution, deserve at least this much.