Sotomayor: How Little We've Learned

Going into the second day of questioning, it’s remarkable how little we’ve learned about Judge Sotomayor. Questions from senators have largely fallen into two categories: questions about her extra-judicial speeches and activities, and questions about specific issues. On the speeches, she has tried to explain herself, but Republican senators don’t seem to be buying it. On specific issues, like abortion, gun control, and the death penalty, she has replied to questions by either reciting Supreme Court precedents or refusing to answer, saying it is a policy question for Congress; these non-answers frustrate both Republican and Democratic senators alike. But almost no one has asked the questions that really matter: how exactly does she go about deciding cases?

Remember Justice John Roberts’s confirmation hearings? There were long discussions of the role of precedents—and “superprecedents,” a ridiculous term—and the method of judicial interpretation used by judges when interpreting statutes and the Constitution. Judge Sotomayor in her opening statement said her philosophy is simple: “fidelity to the law.” But that means almost nothing. She has said several times that judges apply the law to the facts in front of them, but the law is rarely clear, especially at the Supreme Court level. If the law can easily be applied to the facts, the lower courts can handle the case. The Supreme Court must take on cases where the law is unclear and can’t easily be applied to facts, and thus Sotomayor’s “judicial philosophy” assumes an intelligible, coherent “law” that she is likely to never see.

The closest we got was during Senator Graham’s questioning, when he asked Sotomayor if she would call herself a legal realist. She said she wouldn’t, and then she refused to label herself a strict constructionist or an orginalist, either. Instead of pursuing the line of questions, Senator Graham moved on to another topic. We can only hope someone returns to her judicial philosophy today.