Five questions for Sotomayor

3. Where in the Constitution is the right to privacy – and other unspecified rights – located? Cass Sunstein, a legal adviser to President Obama, has said that Roe v. Wade was poorly reasoned and not rooted in constitutional text or precedent. Does Sotomayor agree? The point here is not to tease out whether she is pro-choice. Rather, does she agree that the right to privacy comes from, as the court explained in Roe, penumbras formed by emanating constitutional amendments? If so, what else lurks in those shadows? Or is the right to privacy – at least as it relates to issues such as sodomy and contraception, which, unlike abortion, don't involve claims to potentially competing rights – really found in the Ninth Amendment, which protects "others retained by the people?" If so, what are other examples of retained rights? The right to pursue an honest living or otherwise be free from government interference with economic liberty?

4. What does the nominee think of Kelo v. City of New London? This is the case in which the city decided to take people's houses and give them to a private company, which promised to use the land in a way that would create jobs and generate more tax revenue. The Supreme Court approved this eminent domain abuse because the Fifth Amendment's "public use" requirement included the "public benefit" contemplated here. Justice O'Connor was forceful in dissent: "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." What is Sotomayor's understanding of "public use"?

5. Should the Supreme Court refer to foreign court decisions to help interpret US law and the Constitution? Certain members of the court increasingly cite foreign sources to support their arguments, typically in disputes over the death penalty and other hot-button issues. The problem is that, while it is perfectly appropriate to look abroad when interpreting international commercial contracts, the views of foreign lawyers are simply irrelevant to the meaning of our founding document. And while Congress should look to foreign example when crafting legislation – much as the founders did when designing the Constitution – interpretation should be done solely with reference to national legal traditions. Otherwise, we not only delegitimize our own law but move it in unexpected directions. For example, US law is much more "liberal" than that in the rest of the world in areas such as abortion and free speech.

There are more questions that need to be asked. If Sotomayor refuses to answer them substantively or offers anodyne truisms, she will not have met the appropriate burden. More important, she will not have gained the trust of the American people.

If, on the other hand, the Republican committee members refuse to ask these tough questions, they will have themselves to blame when the public fails to buy their claims of "judicial activism."

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.

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