This past week, President Obama’s choice to fill Justice David Souter’s seat on the Supreme Court, Judge Sonia Sotomayor, appeared before the U.S. Senate Judiciary Committee for hearings pertaining to her possible conformation. Fellow Next Gen GOP contributors have weighed in whether or not Judge Sotomayor should be confirmed. A tedious week of hearings on Capitol Hill will no doubt impact the final votes for or against confirmation, as will factors pertaining to the 2010 elections.

On Monday, each of the senators on the committee gave opening statements. In these remarks, the Senators took jabs at President Obama, each other, and the current composition of the only judicial body specifically mandated by the U.S. Constitution. All of this was expected, but what stood out were the veracity of some of their claims. In particular, the statements of the Democratic junior senator from Rhode Island, Sheldon Whitehouse, really stood out as absurd and contradictory.

While correct that sloganeering is a problem in Washington, Whitehouse employs a double standard when he criticizes the Roberts court for upholding in Gonzales v. Carhart a ban on intrauterine cranial decompression, otherwise called partial birth abortion,  enacted by Congress while arguing that the court should uphold Congressional statutes. Whitehouse’s claim pertaining to the Second Amendment ignores the fact that few gun cases have historically made it to the Supreme Court. Prior to District of Columbia v. Heller, the last major gun-related case to reach the Court was in the 1930’s, and that case did not claim one way or the other whether an idividual right to keep and bear arms exists in the U.S. Constitution. Of course, the 1994 Supreme Court ruling in United States v. Lopez implies that there are limitations on the ability of government to legislate in the area of gun control. Another case relating to federal power, Printz v. United States, also lends credence to the ruling of the Supreme Court in the Heller case. In noting the English common law heritage of the U.S. legal system, Whitehouse forgets that an individual right to bear arms is well founded within that tradition. If Whitehouse really felt that the court should show empathy for the little guy over entrenched interests, then he would praise the Heller decision, and criticize Sotomayor for her conclusions in Ricci v. DeStefano.  But apparently neither personal liberty nor reality are concerns for the “progressive” junior senator from the thirteenth state.

Questioning began on Tuesday. Judge Sotomayor faced questions from members of both parties on various areas of law. Among the most interesting questions were those posed by senators Hatch (R-Utah), and Grassley (R-Iowa). These senators asked questions on policy areas, or in policy contexts not widely discussed previously with respect to Sotomayor.

In a lenthy exchange, Senator Orrin Hatch asked Sotomayor questions pertaining to the validity of precedence. Hatch did a terrific job of incorporating this line of questioning to the Heller decision and Judge Sotomayor’s judicial philosophy. The “fundamental right” line of questioning is also important, and Senator Hatch should be praised for his questions on these issues.

Senator Chuck Grassley posed questions pertaining to the constitutionality of state prohibitions of same-sex marriage. In 1972, the U.S. Supreme Court held that the Minnesota Supreme Court was correct in its assessment that the precedent set by Loving v. Virginia did not invalidate state laws limiting marriage to opposite-sex couples. When initially asked a question about whether or not the case was binding precedent, Judge Sotomayor requested time to review the facts of that case. Upon appearing before the Judiciary Committee subsequently, Sotomayor was asked once more the question of whether or not Baker v. Nelson was binding precedent by Senator Grassley.

An earlier and lengthier exchange between Grassley and Sotomayor, interrupted briefly by a protester, dealt with the issues raised by the still controversial U.S. Supreme Court ruling in Kelo v. New London.  As it turns out, Sotomayor has a track record on property rights litigation. These issues, as suggested by both Senator Grassley and Judge Sotomayor, are essential to an understanding of American society and economic success, past and present.

Friday featured an assortment of witnesses testifying for or against the confirmation of Judge Sotomayor. Friday is also when votes on the confirmation of Judge Sotomayor became clear. Republicans are justifiably divided on the nomination. Senate Republican Leader Mitch McConnell is justified in his objection to the appointment of Sotomayor. Likewise, there is no surprise in the announcement by moderates among the GOP caucus in the U.S. Senate that they intend to vote for the confimation of Judge Sotomayor to the Supreme Court.

If confirmed, Judge Sotomayor will likely side with the leftward end of the current nine justices on the Supreme Court of the United States. Her decisions in the Ricci and Malloney cases, and her position on the relevance of international judicial decisions on U.S. jurisprudence suggest such. In essence, Sotomayor will probably be quite similar to the justice she has been nominated to replace, David Souter.

Last 5 posts by James Kane

• Politics of Process and Policy - March 17th, 2010
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• On "Real" Diversity and Thinking Critically - March 1st, 2010
• Analyzing the Blair House discourse - February 27th, 2010
• Scott Brown, Barack Obama, and the Politics of Change - January 27th, 2010