Senator John Cornyn (R-TX) has launched "Sen. Cornyn's Daily Question for Judge Sotomayor" as the Top Story on his Senate website. Sen. Cornyn is a member of the Senate Judiciary Committee and a former Texas Supreme Court Justice.

I discovered them in reverse order, so Questions 1 and 6-10 are printed in their entirety below, with links to Questions beyond 10 and to Questions 2-5 given in reverse order following. Please see Sen. Cornyn's website: http://cornyn.senate.gov/public/ for future questions.


CORNYN: Sotomayor's Record Must Be Focus Of Confirmation Hearings

Friday, June 12, 2009

Confirmation hearings for Judge Sonia Sotomayor are scheduled to begin in just over a month. Senator John Cornyn, R-Texas, is committed to giving her record a full and fair review. In an effort to ensure a transparent, comprehensive examination of her extensive record, Senator Cornyn, a member of the Senate Judiciary Committee and a former Texas Supreme Court Justice, will pose a daily question raised by her record and her judicial opinions.

The goal of the Daily Question series is to encourage a civil discourse that focuses on what is important: Judge Sotomayor's record and judicial philosophy.

Daily Question for Friday, June 12, 2009:

What is the proper role of foreign and international law in interpreting the United States Constitution?

Explanation: The Constitution was "ordained and established" by "We the People of the United States." As Chief Justice Marshall explained in McCulloch v. Maryland, 17 U.S. 316, 403 (1819), "[t]he government proceeds directly from the people" and is established "in the name of the people." The Constitution establishes the framework for Congress and state governments to enact laws through the democratic process subject only to the Constitution's restrictions.

In recent years, however, some Supreme Court Justices have looked to foreign nations to find new limitations on what laws Congress and state legislatures can enact. For example, in Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court ruled that legislatures cannot impose capital punishment for heinous crimes committed by individuals under the age of eighteen. Justice Kennedy's majority opinion emphasized the "weight of international opinion" and cited the United Nations Convention on the Rights of the Child, among other sources. Id. at 576-77.

On April 2, 2009, Judge Sotomayor endorsed such consideration of foreign and international law in a prepared address delivered at the American Civil Liberties Union of Puerto Rico. Judge Sotomayor argued that foreign and international law can be "very important" to American judges as a source of "good ideas" that "set our creative juices flowing." In response to those who oppose judicial consideration of foreign law to determine the limits of democratic decisionmaking, she stated at the 1:08 mark:
How can you ask a person to close their ears? Ideas have no boundaries. Ideas are what set our creative juices flowing. They permit us to think, and to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that is based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to good ideas.

Judge Sotomayor also stated at the 20:48 mark that considering foreign and international law is part of a judge's "freedom of ideas":

To the extent that we as a country remain committed to the concept that we have freedom of speech, we must have freedom of ideas. And to the extent that we have freedom of ideas, international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our legal system. It is my hope that judges everywhere will continue to do this.

In my view, the Constitution does not give federal judges the "freedom of ideas" to devise new ways to limit the democratic process. Judges must follow the law and the Constitution. They are not "free" to enact "good ideas" into law when their "creative juices" flow. That is a job for the people acting through their elected branches, not a job for judges tasked with following the law. In light of Judge Sotomayor's address at the ACLU of Puerto Rico, I hope Judge Sotomayor can explain how she reconciles her views of foreign and international law with the properly limited role of the judiciary in a democratic society.

Sen. Cornyn serves on the Finance, Judiciary and Budget Committees. He serves as the top Republican on the Judiciary Committee's Immigration, Refugees and Border Security subcommittee. He served previously as Texas Attorney General, Texas Supreme Court Justice, and Bexar County District Judge.

http://cornyn.senate.gov/public/index.c ... &Issue_id=


Sen. Cornyn’s Daily Question for Judge Sotomayor

Question 6: Friday, June 19, 2009

What is the role of original intent and original public meaning in constitutional interpretation?

Explanation: The original intent of the Framers, and the original public meaning of their words, are an important source of meaning that can guide constitutional interpretation. See, e.g., District of Columbia v. Heller, 128 S. Ct. 2783 (200. The intent of the Framers and the original public meaning of their words are important for an obvious reason. The role of judges in constitutional cases is to interpret Constitutional text that the Framers enacted.

Judge Sotomayor's constitutional decisions have not relied extensively on the original intent or original public meaning of the Constitution. However, her decisions have occasionally mentioned the intent of the Framers in passing. See, e.g., In re Millenium Seacarriers, 419 F.3d 83, 93 n.9 (2d Cir. 2005) (referring to why the Framers vested the federal courts with admiralty jurisdiction); United States v. Heatley, 1998 WL 691201, at *6(S.D.N.Y. 199 (referring to the Framers' goal of prohibiting general warrants in enacting the Fourth Amendment); Rodriguez v. Artuz, 990 F. Supp. 275, 278 (S.D.N.Y. 199 (referring to the Framers' understanding of the writ of habeas corpus).

I am glad to see that Judge Sotomayor has at least occasionally mentioned the Framers in her constitutional decisions. At the same time, it does not seem that she has actually relied on original intent or original public meaning in any of her decisions as a judge. As a result, in the hearings next month, I hope Judge Sotomayor can articulate her views of the proper role of the Framer's intent and the original public meaning of constitutional text in interpreting the Constitution.

http://cornyn.senate.gov/public/index.c ... &Issue_id=


Sen. Cornyn’s Daily Question for Judge Sotomayor

Question 7: Monday, June 22, 2009

How can a judge objectively apply the law if she believes there are multiple realities and multiple versions of the truth?

Explanation: In a speech published in 2002, Judge Sotomayor expressed a critical view of "objective stances" in law:

I accept the proposition that, as Judge [sic] Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow [sic] of Harvard Law School, states "there is no objective stance but only a series of perspectives--no neutrality, no escape from choice in judging."

Judge Sotomayor's agreement with Professors Resnik and Minow raises the fair question of what Professors Resnik and Minow meant by their statements. The key idea seems to come from a 1987 article by Professor Minow called Justice Engendered, published at 101 Harv. L. Rev. 10 (1987). See also Judith Resnik, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S. Cal. L. Rev. 1877, 1905 (198 (discussing Minow's article).

The following passage of Professor Minow's article, which appears at pages 68-70, seems to contain the key idea that Judge Sotomayor endorsed:

[D]iscussions of ‘individual choice' and ‘community consensus' cannot be taken at face value. Instead, these terms should spark inquiries into what conceptions of reality may be precluded or undermined by established social practices.

Strategies for exposing conceptions of reality that are treated as natural include searching out alternate views that have been ignored or suppressed, as well as engaging in persistent critiques of both minute and major exercises of power. Thus, theorists in many fields have attempted to identify suppressed cultures and voices that represent potential and actual points of resistance to dominant cultural forms. Although members of minority groups have historically felt an obligation to become conversant in the world view of the majority, they have also made an effort to preserve their own. Minority group members and their sympathizers alike celebrate these experiences in bilingualism and biculturalism as a strategy of resistance and as a method for exposing the workings of power.

Those who celebrate multiplicity, however, challenge the control of the dominant culture. The current political battle over establishing English as the official language is one example of dominant groups fighting back after minority groups challenged their dominance. Law, particularly as administered in the courts, provides apparent mechanisms for orchestrating competing points of view. With law as the battleground, we must ask: will courts reinforce the illusion of one reality, or devise ways to take minority perspectives seriously?

The difference dilemmas, disrobed, are not insoluble problems about neutrality and discretion, but are instead serious struggles over which versions of reality judges should embrace. Taking minority perspectives seriously calls for a process of dialogue in which the listener actually tries to reach beyond the assumption of one reality, one version of the truth. There is no neutrality, no escape from choice.

Judge Sotomayor's stated agreement with Professor Minow raises important questions about how she would approach the application of objective legal standards if she is confirmed to the Supreme Court. How would Judge Sotomayor resolve the claimed "serious struggles over which version of reality" she would embrace? What struggles over reality does Sotomayor envision? How would Judge Sotomayor resolve the tension she apparently sees between the reality of the "dominant culture" and the "alternate views that have been ignored or suppressed"? What do these words mean to Judge Sotomayor?

http://cornyn.senate.gov/public/index.c ... cc34eff854


Sen. Cornyn’s Daily Question for Judge Sotomayor

Question 8: Tuesday, June 23, 2009

Does Judge Sotomayor believe that the firefighters' claims in Ricci v. DeStefano are routine and not worthy of careful treatment?

Explanation: One of the puzzles of Judge Sotomayor's record is her participation in the Second Circuit panel that decided Ricci v. DeStefano, the New Haven firefighters case. This case involves firefighters in New Haven, Connecticut who took a test for a promotion to Lieutenant or Captain. The testing was rigorous, but the government did not get the results it wanted. The mayor and fire commissioners of New Haven felt that not enough African-Americans had passed the test. So they threw out the test and refused to promote anybody. Ricci and 19 other firefighters sued in an effort to bring back the test results. They argued that the city couldn't throw out the results just because of the race of the people who happened to score well on the test.

In my view, the Ricci case raises very serious questions that deserve thorough and careful treatment. And the Supreme Court seems to agree with me: The Supreme Court agreed to review the Ricci case, and it has still not handed down the decision even thought the Supreme Court's term is almost over. The fact that the Supreme Court hasn't released the Ricci opinion this late in the Supreme Court's term suggests that the Supreme Court sees the issues raised by the case as difficult ones.

When Judge Sotomayor heard the Ricci case, however, she joined a short, unsigned, and unpublished opinion that dismissed the firefighters' claims. That kind of opinion is usually reserved for easy and routine cases that do not deserve particularly careful treatment. Judge Sotomayor's conduct in the Ricci case raises the question of whether she saw the issues in that case as easy ones - and if so, why. I hope Judge Sotomayor can explain to the Senate and to the American people why she believed it was proper to resolve the Ricci case with a short, unpublished, and unsigned opinion rejecting the firefighters' claims.

http://cornyn.senate.gov/public/index.c ... 04ab5b855b


Sen. Cornyn’s Daily Question for Judge Sotomayor

Question 9: Wednesday, June 24, 2009

Are judges supposed to update the law to reflect changing social policy?

Explanation: In our democracy, the role of judges is narrow. Judges are not free to change the law just because they want to change it. The task of updating the law belongs to the elected branches, not to the judges.

In a 1996 speech, however, Judge Sotomayor dismissed these traditional ideas as a "myth." See Hon. Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35 (1996-1997). According to Judge Sotomayor, judges can and must change the law - sometimes introducing "radical change" - to update the law for the needs of an "evolving" society. In her view, the law must always be uncertain and in a "necessary state of flux." While the public wants the law to be stable, judges and lawyers want the law to be "often unpredictable" so it can evolve to meet changing preferences of "social policy."

In her article, Judge Sotomayor acknowledged the gap between what the public wants the law to be and what judges want the law to be. Instead of suggesting that judges should try to meet public expectations, she argued that public expectations should change to recognize the perspective of lawyers and judges. In particular, she focused on steps that could be taken to help the public accept the role of judges and lawyers in changing the law.

Judge Sotomayor's article raises serious questions about her view of the proper role of a judge. In her article, she puts judges first instead of people first. Her dismissal of the public's need for the law to be certain and stable is troubling. I think the American people deserve a judge who recognizes that the elected branches are tasked with updating the law rather than the unelected judiciary. I hope that the upcoming hearings will provide an opportunity for Judge Sotomayor to clarify her views.

http://cornyn.senate.gov/public/index.c ... 0f90267b2d



Sen. Cornyn’s Daily Question for Judge Sotomayor

Question 10: Thursday, June 25, 2009


What did Judge Sotomayor mean when she agreed that the Second Amendment does not protect a fundamental right?


Explanation: The significance and scope of the Second Amendment will be important issues raised at the hearings for Judge Sotomayor's nomination to the Supreme Court. Judge Sotomayor has decided two cases involving the Second Amendment in which she has discussed whether the Second Amendment confers a fundamental right. In United States v. Sanchez-Villar, 99 Fed. Appx. 256 (2d Cir. 2004), an opinion she joined stated in a brief footnote that the Second Amendment did not confer a fundamental right. And the decision she joined in Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009), indicated the same point.
The hearings for Judge Sotomayor will provide an opportunity for Judge Sotomayor to explain the significance of the statements in Sanchez-Villar and Maloney that the right to keep and bear arms is not a fundamental right. The precise legal significance of whether a legal right is "fundamental" can vary depending on the context. For example, the Supreme Court has used the term "fundamental rights" in the context of the Due Process clause to refer to those fundamental rights and liberties that trigger strict scrutiny. See Washington v. Glucksberg, 521 U.S. 702 (1997). On the other hand, the Supreme Court has used the term "fundamental rights" to refer to parts of the Bill of Rights that are so essential that they are incorporated by the Fourteenth Amendment and therefore apply to the states. See, e.g., Pointer v. Texas, 380 U.S. 400, 403 (1965).

In some cases the Supreme Court has referred to a right as fundamental without making the precise meaning clear. The Second Amendment is a good example. In District of Columbia v. Heller, 128 S. Ct. 2783, 2798 (200, the Supreme Court referred to the historical understanding of the right to keep and bear arms as a fundamental right:

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122-134. Blackstone, whose works, we have said, "constituted the preeminent authority on English law for the founding generation," Alden v. Maine, 527 U.S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139-140 (1765).

During the hearings in July, I hope Judge Sotomayor can explain how she reconciles the statements she has joined about the Second Amendment with the Supreme Court's statements about the Second Amendment in Heller. Further, I hope she can explain what she thinks it means to say that the Second Amendment is or is not a "fundamental right."

http://cornyn.senate.gov/public/index.c ... 8739b677ed


Sen. Cornyn’s Daily Question for Judge Sotomayor
Question 11: Friday, June 26, 2009

How should courts measure the Government's need to protect the public safety against the threat of terrorism?

http://cornyn.senate.gov/public/index.c ... 046d47e529


Sen. Cornyn's Daily Question for Judge Sotomayor
Thursday, June 18, 2009, Question 5:

"Are there any limits to the power of Congress under Article I, Section 8 of the Constitution"

http://cornyn.senate.gov/public/index.c ... &Issue_id=


Sen. Cornyn's Daily Question for Judge Sotomayor
Wednesday, June 17, 2009, Question 4:

"What is the role of statutory text in statutory interpretation?"

http://cornyn.senate.gov/public/index.c ... &Issue_id=


Sen. Cornyn's Daily Question for Judge Sotomayor
Tuesday, June 15, 2009, Question 3:

"How much should courts defer to the judgment of Congress and the Executive Branch in the area of national security?"

http://cornyn.senate.gov/public/index.c ... &Issue_id=


Sen. Cornyn’s Daily Question for Judge Sotomayor
Question 2: Monday, June 15, 2009

What is the power of a federal court to interpret the law absent a "Case" or "Controversy"?

http://cornyn.senate.gov/public/index.c ... &Issue_id=