Posted by Randy Barnett:
Sotomayor (and Hatch & Feingold) on Fundamental Rights and the 14th Amendment:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247600807
I have posted the following on the [1]WashingtonPost.com's "Topic A"
commentary on today's hearings:
One of the things we hope to learn during confirmation hearings is
a nominee's approach to the constitutional protection of liberty.
But in her exchange with Sen. Orrin Hatch (R-Utah) about the second
amendment and its potential application to the states, Sonia
Sotomayor revealed remarkably little about her understanding of how
the Supreme Court protects liberty under the fourteenth amendment.
For example, more than once she said a right was "fundamental" if
it was "incorporated" into the fourteenth amendment. But this gets
it backwards. The Supreme Court incorporates a right BECAUSE it
finds it to be fundamental. When asked how she understands the
criteria by which the court concludes that a right is fundamental,
she did not give a substantive response. Then, when Hatch asked her
about the difference between nineteenth century precedent involving
the privileges or immunities clause and the twentieth century cases
involving the due process clause, she said she did not recall the
cases well enough to address the difference. Indeed, in the per
curium opinion she joined in Maloney, the panel did not address
this crucial issue, in contrast with panels in the 9th and 7th
Circuits.
In fairness, Hatch's questions were themselves both confused and
confusing to anyone who did not know what he was trying to say. At
one juncture, for example, he repeatedly referred to "the
privileges AND immunities clause" (which is in Article IV of the
constitution) and contrasted it with the fourteenth amendment. He
seemed to be unaware that there is a privileges OR immunities
clause in the fourteenth amendment itself, which the cases he was
citing were about. However, I would have hoped that Sotomayor would
have understood these cases -- which she had relied upon in her
Maloney opinion -- as well as the discussion of this issue in the
Supreme Court case of D.C. v. Heller well enough to have educated
Hatch, as well as the rest of us, on this important aspect of
Supreme Court doctrine.
As it stands, we know next to nothing about her understanding of
this area. Hopefully, she will be given an opportunity to revisit
this issue in future questioning and will elaborate on her views of
how the fourteenth amendment protects liberty.
Here is her characterization of a "fundamental right":
SOTOMAYOR: Those rights have been incorporated against the states.
The states must comply with them. So in -- to the extent that the
court has held that...
HATCH: Right.
SOTOMAYOR: ... then they are -- they have been deemed fundamental,
as that term is understood legally.
Here is the exchange that immediately preceded the previous answer in
which she is asked to explain the criteria by which a right is deemed
to be fundamental:
HATCH: Well, what's ... excuse me, I'm sorry. I didn't mean to
interrupt you.
What's your understanding of the test or standard the Supreme Court
has used to determine whether a right should be considered
fundamental? I'm not asking a hypothetical here. I'm only asking
about what the Supreme Court has said in the past on this question.
I recall (inaudible) emphasizing that a right must be deeply rooted
in our nation's history and tradition, that it is necessary to an
Anglo- American regime of ordered liberty, or that it is an
enduring American tradition.
I think I've cited that pretty accurately on what the court has
held with regard to what is a fundamental right. Now, those are
different formulations from the Supreme Court's decisions, but I
think the common thread there is obvious. Now, is that your
understanding of how the Supreme Court has evaluated whether a
right should be deemed fundamental?
SOTOMAYOR: The Supreme Court's decision with respect to the Second
Circuit incorporation -- Second Amendment incorporation doctrine is
reliant on old precedent of the court, and I don't mean to use that
as precedent that doesn't bind when I call it old. I'm talking
about precedent that was passed in the 19th century.
Since that time, there is no question that different cases
addressing different amendments of the Constitution have applied a
different framework. And whether that framework and the language
you quoted are precise or not, I haven't examined that framework in
a while to know if that language is precise or not. I'm not
suggesting it's not, Senator. I just can't affirm that description.
SOTOMAYOR; My point is, however, that once there's Supreme Court
precedent directly on point, and Second Circuit precedent directly
on point on a question, which there is on this incorporation
doctrine and how it uses the word "fundamental," then my panel,
which was unanimous on this point -- there were two other judges --
and at least one other -- or one other panel on the Seventh Circuit
by Justice -- by Justice -- by Judge Easterbrook has agreed that,
once you have settled precedent in an area, then, on a precise
question, then the Supreme Court has to look at that.
And under the deference one gives to stare decisis and the factors
one considers in deciding whether that older precedent should be
changed or not, that's what the Supreme Court will do.
I just listened to an exchange on the same topic with Senator Russ
Feingold, which left me with 2 impressions. First, Feingold was much
more articulate about the constitutional questions than was Orren
Hatch. And, second, Sotomayor is giving entirely nonanswer answers to
every substantive question she is asked. Here is her response to a
question about a line of cases:
FEINGOLD: I can understand some hesitance on this. But the truth is
that courts are already dealing with these very issues.
The Supreme Court itself has now struck down a number of post- 9/11
policies. And you yourself sat on a panel that struck down one
aspect of the National Security Letter statutes that were expanded
by the Patriot Act.
So, I'd like to hear your thoughts a bit on whether you see any
common themes or important lessons in the Court's decisions in
Rasul, Hamdi, Hamdan and Boumediene. What is your general
understanding of that line of cases?
SOTOMAYOR: That the Court is doing its task as judges. It's
looking, in each of those cases, at what the actions are of either
the military, and what Congress has done or not done, and applied
constitutional review to those actions.
Hmmm. Very interesting. Here is Feingold trying to get her
understanding of the general approach to incorportion:
FEINGOLD: But what would be the general test for incorporation?
SOTOMAYOR: Well...
FEINGOLD: I mean, what is the general principle?
SOTOMAYOR: One must remember that the Supreme Court's analysis in
its prior precedent predated its principles or the development of
cases discussing the incorporation doctrine. Those are newer cases.
And so the framework established in those cases may well inform --
as I said, I've hesitant of prejudging and saying they will or
won't because that will be what the parties are going to be arguing
in the litigation. But it is...
FEINGOLD: Well...
SOTOMAYOR: I'm sorry.
FEINGOLD: No, no. Go ahead.
SOTOMAYOR: No, I was just suggesting that I do recognize that the
court's more recent jurisprudence in incorporation with respect to
other amendments has taken -- has been more recent. And those cases
as well as stare decisis and a lot of other things will inform the
Court's decision how it looks at a new challenge to a state
regulation.
The last part of her answer may be my favorite response so far in the
hearing. To this point, it is impossible to tell from her responses
whether she knows anything about constitutional law OR whether she
simply does not want to offer any opinions that could possibly be
criticized. I do not recall a confirmation hearings in which so little
of substance is revealed by a nominee.
References
1.
http://www.washingtonpost.com/wp-dyn/content/story/2009/07/14/ST2009071401786.html?sid=ST2009071401786
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