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Question(s)of the Day for Soto – Will She Answer?

Below are the last four pre-hearing “daily” questions offered by Senator Cornyn. These, and all those offered to date, are critically important questions for someone seeking confirmation to the United States Supreme Court. She should answer them.

Next week, we will find out if she will.

July 10, 2009: What is Judge Sotomayor’s judicial philosophy?
July 9, 2009: What is the proper role of judges in defining marriage and the family?
July 8, 2009: What limits does the First Amendment impose on campaign finance regulation?
July 7, 2009: Should constitutional interpretation resemble common law decision-making?

To view all twenty questions posed by the Senator, click here.

Question of the Day: July 10, 2009
What is Judge Sotomayor’s judicial philosophy?

Explanation: For the last few weeks, I have posted a daily question for Judge Sotomayor about her record and her views on the law and the Constitution. My questions have focused on a core set of questions: What is Judge Sotomayor’s judicial philosophy? How would she interpret the law? What is the proper role of the Supreme Court in a democratic society?

I have asked these questions to help make the confirmation process transparent and respectful. Every Supreme Court nomination calls on the U.S. Senate to examine the nominee’s record in depth. I have looked closely at Judge Sotomayor’s record in the last few weeks. Through these daily questions, I have been open about my views, my hopes, and my concerns that are raised by Judge Sotomayor’s record.

The hearings for Judge Sotomayor will begin next Monday, just three days away. Judge Sotomayor will finally have an opportunity to answer these and other questions. I hope Judge Sotomayor will answer the questions I have posed with the same spirit of transparency and openness in which I have asked them.

Question of the Day: July 9, 2009
What is the proper role of judges in defining marriage and the family?

Explanation: The definition of marriage and the law of the family traditionally have been questions for legislatures. In recent years, however, the power of the people to define marriage and the family through the elected branches has been challenged.

Just yesterday, Massachusetts Attorney General Martha Coakely filed suit against the federal government seeking to have the Defense of Marriage Act struck down as unconstitutional. The Defense of Marriage Act was enacted by Congress in 1996 and was signed by President Clinton. The Act states that for purposes of federal law, marriage means only a legal union between one man and one woman as husband and wife. The Act also preserves the rights of the several states to recognize, or not recognize, marriage licenses issued by other states.

Judge Sotomayor does not have a record on the role of the courts in defining marriage and the family. However, she has celebrated the idea that “change – sometimes radical change—can and does occur in a legal system that serves a society whose social policy itself changes.” See Hon. Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35 (1996-1997). The context of her comment suggests that this “radical change” comes from the courts.

The upcoming hearings will give Judge Sotomayor an opportunity to explain her view of the role of the courts in defining marriage and the family. I hope she will affirm the principle that the authority to define marriage and the family rests with the legislature and not the judiciary.

Question of the Day: July 8, 2009
What limits does the First Amendment impose on campaign finance regulation?

Explanation: The First Amendment protects the right of individuals to support political campaigns as well as the right of political campaigns to spend money to get out their message. The First Amendment’s limitations reflect the reality that political speech is core First Amendment speech.

In a 1996 article, however, Judge Sotomayor appeared to lament this kind of political speech. She analogized campaign contributions to bribes and urged the passage of “strict” campaign finance laws:

Can elected officials say with credibility that they are carrying out the mandate of a ‘democratic’ society, representing only the general public good, when private money plays such a large role in their campaigns? If they cannot, the public must demand a change in the role of private money or find other ways, such as through strict, well-enforced regulation, to ensure that politicians are not inappropriately influenced in their legislative or executive decision-making by the interests that give them contributions.

Hon. Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35, 42 (1996)

Judge Sotomayor’s apparent endorsement of strict campaign finance regulation fairly raises the question of how she would square her policy views with the requirements of the First Amendment. In the upcoming hearings, I hope Judge Sotomayor will explain her views of the First Amendment and the constitutionality of campaign finance regulations.

Question of the Day: July 7, 2009
Should constitutional interpretation resemble common law decision-making?

Explanation: Judge Sotomayor has written that “the law” is uncertain and in a necessary state of flux. See Hon. Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35, 37 (1996-1997). Judge Sotomayor has noted that “the very nature of our common law is based upon the lack of certainty,” and she has suggested that what is true for “the common law” is true for the rest of law. Id.

In my view, Judge Sotomayor’s view of “the law” mistakenly assumes that all legal decisionmaking is like common law decisionmaking. It is not. As lawyers know, the common law refers to judge-made law that the colonists inherited from England in a period before a written Constitution. Common law judging requires judges to make the law because the judiciary is the only legal institution involved.

The work of our federal courts is very different. As the Supreme Court stated back in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938), “[t]here is no federal general common law.” The role of federal courts and the Supreme Court primarily involves interpreting written text such as statutes and the Constitution. The role of courts is much narrower in our system because the judges are not tasked with the job of making the law. As a result, the proper work of a federal judge is very different from a common law judge. While a common law judge can make the law, a federal judge can only interpret the law enacted by the elected branches.

At her hearings next week, I hope Judge Sotomayor can explain her vision of judging. I hope she will explain the difference between common law judging and interpreting a written constitution, and the much narrower role of judges that the latter requires.

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