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Five questions for Sotomayor

GOP senators should probe her views on key Supreme Court decisions.

By Ilya Shapiro / June 9, 2009


Whether the Republicans will muster strong opposition to the president's Supreme Court pick is beside the point.

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The minority on the Senate Judiciary Committee has the opportunity – and the responsibility – to educate the public about the distinctions between judicial philosophies that limit judges to a judicial role, and those that demand they be super-legislators. Some people think that when a jurist is confronted with a perceived social injustice, she should fix it. Judges, after all, are expected to use judgment.

But this is a misperception of the judicial role. Judges use their constitutional authority – and judgment – to decide particular cases by applying law to particular facts. They should not bend or otherwise change the law to fit their policy preferences. There are indications, however, that Sonia Sotomayor is willing to venture outside of written law to reach the policy result she wants. Her Senate confirmation hearings are the proper forum to determine if this is so. US Solicitor General and Supreme Court short-lister Elena Kagan said in a 1995 article that our "confirmation mess" can be blamed on a lack of "meaningful discussion of legal issues." That's because nominees often duck senators' questions by saying they wouldn't want to "prejudge" an issue that might come before them on the bench. But what legal issue can't?

Unless we want confirmation processes to continue focusing on pot smoking, illegal-immigrant nannies, and the like, senators from both parties should ask probing questions that can cut through the "that case may come before me" clutter and actually shed light on Judge Sotomayor's judicial philosophy. Here are five:

1. Can the government rewrite leases, mortgages, and other contracts? The Depression-era Supreme Court said yes in a case called Home Building & Loan Association v. Blaisdell because constitutional protections for property and contract rights can be sacrificed to "protect" homeowners. While such reasoning may promote a crude form of social justice, it prevents people from planning their affairs because it undermines their confidence that contracts they sign today will be enforced tomorrow – and thereby destroys the credit and capital markets upon which modern life rests. Is this the kind of "empathy" the nominee shares?

2. Can the government regulate activity that is neither commerce nor crosses state lines? The Interstate Commerce Clause of the Constitution says no, but the 1942 case of Wickard v. Filburn allowed the Department of Agriculture to fine a farmer for growing too much wheat and not taking enough of it to market – because his actions, when aggregated with other farmers, could affect the interstate price of wheat. Sixty-three years later, the court used similar logic to stop a seriously ill woman from growing marijuana for "compassionate use" under California law.