Franken questions Sotomayor

by: Joe Bodell

Thu Jul 16, 2009 at 08:03:28 AM CDT

The substantiveness of his questions was a refreshing break from business as usual in these hearings -- most of the time, you hear Senators putting hypothetical "gotcha" questions to the nominee and the nominee rightfully refuses to answer hypotheticals because the matter might come before the Court.

Take, for example, this exchange:

FRANKEN: OK, so we've got some work to do on this. I want to get into judicial activism. I brought this up in my opening statement. As I see it, there's kind of an impoverishment of our political discourse when it comes to the judiciary. I'm talking in politics.

When candidates or officeholders talk about the -- what kind of judge they want, it's very often just reduced to, "I don't want an activist judge. I don't want a judge that's going to legislate." And that's sort of it. That's it. It's a 30-second sound bite.

As I and a couple of other senators mentioned during our opening statements, judicial activism has become a codeword for judges that you just -- you don't agree with. Judge, what is your definition of judicial activism?

SOTOMAYOR: It's not a term I use. I don't use the term, because I don't describe the work that judges do in that way. I assume the good faith of judges in their approach to the law, which is that each one of us is attempting to interpret the law according to principles of statutory construction and other guiding legal principles, and to come in good faith to an outcome that we believe is directed by law.

When I say we believe, hopefully we all go through the process of reasoning it out and coming to a conclusion in accordance with the principles of law.

I think you're right that one of the problems with this process is that people think of activism as the wrong conclusion in light of policy. But hopefully judges -- and I know that I don't approach judging in this way at all -- are not imposing policy choices in -- or their views of the world or their views of how things should be done. That would be judicial activism, in my sense, if a judge was doing something improper like that.

But I don't use that word because that's something different than what I consider to be the process of judging, which is each judge coming to each situation trying to figure out what the law means, the applying it to the particular fact before that judge.

Franken also asked his signature question about Net Neutrality, which elicited a rather long discussion which can be read at the link above. But the other exchange I wanted to highlight was this one, about privacy rights (after the break):

FRANKEN: OK. I got you. Let me jump ahead to something. Yesterday, a member of this committee asked you a few times whether the word "abortion" appears in the Constitution, and you agreed that, no, the word "abortion" is not in the Constitution. Are the words "birth control" in the Constitution?

SOTOMAYOR: No, sir.

FRANKEN: Are -- are you sure?

SOTOMAYOR: Yes.

FRANKEN: OK. (LAUGHTER) Are the words "privacy" in the Constitution or the word?

SOTOMAYOR: The word "privacy" is not.

FRANKEN: Senators Kohl, Feinstein, and Cardin all raised the issue of privacy, but I want to hit this head on. Do you believe that the Constitution contains a fundamental right to privacy?

SOTOMAYOR: It contains, as has been recognized by the courts for over 90 years, certain rights under the liberty provision of the due process clause that extend to the right to privacy in certain situations.

This line of cases started with a recognition that parents have a right to direct the education of their children and that the state could not force parents to send their children to public schools or to bar their children from being educated in ways a state found objectionable.

Obviously, states do regulate the content of education, at least in terms of requiring certain things with respect to education that I don't think the Supreme Court has considered, but the basic -- that basic right to privacy has been recognized and was recognized. And there have been other decisions.

1FRANKEN: So the issue of whether a word actually appears in the Constitution is not really relevant, is it?

SOTOMAYOR: Certainly, there are very specific words in the Constitution that have to be given direct application. There are some direct commands by the Constitution. You know, senators have to be a certain age to be senators. And so you've got to do what those words say.

But the Constitution is written in broad terms. And what a court does is then look at how those terms apply to a particular factual setting before it.

Of course, Sotomayor is nominated to replace Souter, so her addition to the court will not change that aspect of the court's makeup significantly. But it's good to see that the Obama Administration is asking the right questions when they pick judicial nominees.