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Sotomayor's Second Day of Questioning

by Professor Will Huhn on July 16, 2009

in Constitutional Law,Wilson Huhn

     Here are links to some news reports about Sotomayor's second round of questioning Wednesday.  I found one particular exchange illuminating.

     ABC News' principal headline is Sotomayor Grilled on Abortion, Gun Rights, and reports that she "declined to respond to senators' questions asking her to explain her personal views."  Another ABC News story describes a humorous exchange between Sotomayor and Senator Tom Coburn in which during a discussion on gun rights Sotomayor, speaking hypothetically, suggested that if she went home and got a gun and shot the Senator … and the Senator interrupted her lesson on the law of self-defense with the quip, "You'll have lots of  'splainin' to do," the old Ricky Ricardo line.  I guess you had to be there.

     CBS News' lead headline similarly states Sotomayor Dodges Abortion Questions.  One particular exchange between Senator John Cornyn and Sotomayor is highlighted in this article.  Senator Cornyn asked Sotomayor whether President Obama or anyone else in the administration had discussed with Sotomayor her views on abortion or whether Roe v. Wade should be reaffirmed or overruled, and she stated that they had not.  He noted that the White House had reassured abortion rights supporters about Sotomayor's position on abortion, and asked whether she knew why that would be – she answered that she did not.  He then observed that George Pavia, a senior partner at a law firm she used to work at, had stated that support for abortion rights would be in line with her "generally liberal instincts."  Sotomayor responded that she had never discussed abortion with Mr. Pavia. 

     In my opinion the most illuminating point in yesterday's hearing occurred at another point in Sotomayor's discussion with Senator Cornyn, when the senator asked the judge, "Do you believe that judges ever change the law?"  Sotomayor responded:

     They change — they can't change law. We're not lawmakers. But we change our view of how to interpret certain laws based on new facts, new developments of doctrinal theory, considerations of what the reliance of society may be in an old rule. We think about whether a rule of law has proven workable. We look at how often the court has affirmed a prior understanding of how to approach an issue. But in those senses, there's changes by judges in the popular perception that we're changing the law.

     In her answer Judge Sotomayor was following a theory of stare decisis which was developed by Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).  In that case those three Republican appointees voted to reaffirm Roe v. Wade not because they agreed with it, but because before the Court overrules precedent – particularly important precedent like Roe – there must be some compelling reason to do so other than simple disagreement with the result.  O'Connor, Kennedy, and Souter identified four reasons that would justify overruling a case such as Roe: (1) If the legal standard that had been established in the previous case had proven to be "unworkable," that is, too vague to be consistently applied; (2) If no-one in society in fact relied upon the previous decision; (3) If the fundamental holding of the previous case had been undermined by subsequent decisions; or (4) If changes in fact or understandings of fact had made it clear that the previous decision rested on false premises.  The three justices concluded that none of those four factors was present and they voted to reaffirm Roe.

     Sotomayor mentioned all four of the Casey factors in her answer to Senator Cornyn, which tells me that in preparation for yesterday's hearing she had diligently studied O'Connor's, Kennedy's, and Souter's joint opinion from that case reaffirming Roe.  That in itself may be the strongest evidence that we have to date concerning Sotomayor's views on abortion and Roe v. Wade.


Dan S. July 16, 2009 at 2:35 pm

OK, it seems she won't vote to overturn laws unless there is a darn good reason. That is good for Roe, but how would that thought process affect the potential status of Gay Unions vs the DOMA?

mrasor July 17, 2009 at 12:13 am

As a conservative, I'm happy with Sotomayor and how she has dealt with the confirmation.

Call me an optimist, but I believe Obama's personal views on gay marriage preclude a nominee that is an activist on that issue. I have seen nothing to say Sotomayor is going to be a huge Roe v. Wade supporter. I see her as another Kennedy on abortion — a stance based on stare decisis, and not his/her true views of the 14th Amendment.

I was surprised to hear about her temperament, but as long as I'm not arguing before SCOTUS, it doesn't bother me.

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