Sotomayor Confirmation Hearing: the Issue of Precedent

July 14, 2009

I’ve been watching the Senate confirmation hearing for Obama’s nominee to the U.S. Supreme Court, Sonia Sotomayor.  I’d like to point something out quickly.

Democrats typically ask about a judge’s “respect for precedent” as code-speak for “do you respect Roe v. Wade and will you follow it?”  Democrats don’t like to ask the latter question because it reveals their fierce dedication to abortion.  However, during the Reagan administration, Democrats defeated the nomination of Judge Robert Bork, citing, among other things, that Judge Bork (allegedly) would have decided Brown v. Board of Education (the case that integrated public schools and overturned the “separate but equal doctrine”) differently than it was decided. 

Here’s the rub: Brown v. Board of Education was a departure from precedent.  Further, there was no precedent dictating the result in Roe v. Wade.  Democrats like departure from precedent when they agree with it.  They don’t like departure from “their” precedents.  (I’ll admit that Republicans do the exact same thing, though they typically argue that they want judges to depart from bad precedent and return to an original understanding of the Constitution, not create new and unpredictable law like the liberal justices do.) 

In the hearing today, Judge Sotomayor made the disingenuous statement when questioned about her opinion about one case, “that’s the settled law so I’d be bound to follow it [as a Supreme Court justice].”  That simply is not true.  As a Supreme Court justice, there is no enforceable obligation to stare decisis.  The Court can plainly reject past cases, as it did in Brown v. Board of Education, whenever it wants to.  When she is made a Supreme Court justice, she will do whatever she wants to do, and she’ll decide to overturn any precedent she doesn’t agree with (and try to get four other justices to do the same thing).  For her to claim that she will blindly follow precedent as a Supreme Court justice flies in the face of the entire history of the United States Supreme Court. 

Of course, she will follow precedent when it suits her, and Roe v. Wade is certainly one of those precedents.  She is also sure to use the “empathy” that President Obama said he expects, whatever “empathy” even means.


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