Rao in WSJ: Questions for Sotomayor

Commenting in a Wall Street Journal op-ed, Professor Neomi Rao says that while most judicial nominees to the U.S. Supreme Court will customarily avoid hot-button issues during the confirmation process, she believes they should be prepared to answer questions about judicial philosophy. "The stakes are high when we give a person life tenure to decide some of the most important issues facing our country," says Rao.

"The president and Congress are elected to focus on results, to get things done, to bring about change. They can choose to implement empathetic policies that favor the weak and pull up the disadvantaged. In our constitutional system, however, the judiciary does not simply duplicate this political process. The Senate and the American people should make sure that a nominee to the Supreme Court understands the difference, " Rao advises.

Questions for Sotomayor, The Wall Street Journal, May 27, 2009. By Neomi Rao.

"Here are some questions for Ms. Sotomayor:

"- Do you believe that judges should use 'empathy' to decide cases? If so, what's the difference between empathy and judicial activism? The president has emphasized empathy as a paramount judicial quality. Polls show, however, that Americans want moderate judges who follow the law, not their hearts. Chief Justice John Roberts said in his confirmation hearings that judges should act like umpires -- calling the plays, not making them. Mr. Obama has suggested he wants a home-run hitter.

"- Do you believe that interpretations of the Constitution should evolve to keep up with the times? If so, how would you decide when the Constitution needs updating? The president has said he believes that the Constitution has to change to keep up with the times, and in Ms. Sotomayor he has probably not chosen a candidate who believes in following the original meaning of the text. Nonetheless, constitutional text and original meaning should provide some constraint on the scope of interpretation. The nominee should be able to state some guidelines and limits for interpretation, including whether and how she would consider international law or the constitutional law of other nations.

"- Should Supreme Court justices be bound by precedent? All justices sometimes overrule previous decisions. So when is it appropriate to do so? Of course, this is the question that senators use to probe nominees of Republican presidents to see whether they would vote to overturn Roe v. Wade. For Ms. Sotomayor the question is whether she perceives any limits on the ability of the Supreme Court to read new rights into the Constitution.

"- What is the court's role when interpreting ambiguous laws? The confirmation process often focuses on constitutional questions that never get directly answered, but a great deal of law is made (and unmade) when the court interprets statutes. Statutes, not the Constitution, regulate financial markets, the environment, our workplaces, and many forms of private discrimination. So it matters how they are interpreted.

"Statutes are enacted through a difficult constitutional process. They require passage by the House and Senate and the president's signature. Justice Antonin Scalia argues that this finely wrought procedure requires judges to stick to the text of statutes and follow their plain meaning. Justice Stephen Breyer has argued, to the contrary, that judges should interpret statutes pragmatically to promote good consequences. Ms. Sotomayor needs to identify where she lies on this spectrum.

"- What matters most, the law or the result? Or put another way, when the law requires a result that you don't like, what do you do? This might seem like an easy question. Judges interpret the law, they don't make it. That was the view of President George W. Bush and his nominees to the high court. Mr. Obama has made it clear, however, that he thinks the law should often be about results -- that the Constitution evolves to reflect modern times and statutes may be twisted to achieve justice. Any judge worth the name recognizes that the law will sometimes lead to a result of which she personally disapproves. When this happens, the judge must implement the law, not her personal preferences."

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