What Senators Want From Sotomayor

July 13, 2009|By Carl Tobias

Monday, the Senate Judiciary Committee will conduct a confirmation hearing for U.S. Second Circuit Court of Appeals Judge Sonia Sotomayor, President Barack Obama's first Supreme Court nominee. Senator Patrick Leahy, Democrat of Vermont, set the hearing quickly after the president nominated her so that Judge Sotomayor could promptly respond to certain questions regarding her views and to some criticisms of her jurisprudence. Here are some of the questions Judge Sotomayor might expect.

1. On the final day of the Supreme Court's most recent term, the justices reversed the opinion of a Second Circuit panel on which you sat in the Ricci case. The Supreme Court found that the city of New Haven did not adequately justify discarding all results on a firefighter promotion test that no African-American firefighters passed.

Why did the panel affirm the district court in Ricci? One of your Second Circuit colleagues criticized the panel for relying on a terse, unpublished opinion to resolve Ricci, asserting that the complex issues related to employment and race deserved more thorough analysis. Can you explain why you chose to resolve Ricci as you did?

2. Do you have a theory of separation of powers generally and executive power specifically? Has the "global war on terror" altered your views on executive power?

3. Do you have a theory of federalism, the relationship between the national government and the states, and when the federal government invades the province of the states?

4. Do you have a theory of constitutional interpretation? Explain why you agree or disagree with the notion of "original intent."

5. What relevance, if any, should international law sources, such as the Geneva Conventions and World Court opinions, have for interpretation of the U.S. Constitution?

6. Do you have a theory of statutory interpretation?

7. Do you believe that the Constitution includes a right to privacy and, if so, what does that right encompass?

8. Explain what you meant in a 2001 speech when saying that you hoped a "wise Latina with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

9. Recent Supreme Court opinions have narrowed the exclusionary rule, which allows judges to exclude illegally obtained evidence from criminal trials. What are your views on the exclusionary rule?

10. Some observers have criticized the Supreme Court's Kelo opinion, in which the court took an expansive view of eminent domain, for violating private property rights. Do you have a theory of private property rights?

11. What are your views on selective incorporation, the procedure by which the Supreme Court applies certain Bill of Rights provisions to the states? Why did you recently refuse to apply the Second Amendment to the states, as did the Seventh Circuit, even as the Ninth Circuit has applied the Second Amendment?

12. Chief Justice John G. Roberts Jr., in his confirmation hearing, described the role of a judge as like that of a baseball umpire. What is your theory of judging?

13. What are your views on judicial temperament? How do you respond to the assertion that you are insufficiently polite to the attorneys who argue before you?

Carl Tobias is the Williams Professor at the University of Richmond School of Law. His e-mail is ctobias@richmond.edu.

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