Tuesday, July 14, 2009

Asking the Real Questions of a Supreme Court Nominee

Supreme Court nominee Sonia Sotomayor has been saying some of the right things in her hearings. Specifically: “judges must apply the law and not make the law.” So far, so good. But a further and more important questions need to be answered in detail: What is the law and how do you discover it? Can a Supreme Court precedent be wrong? How do you know when a Supreme Court precedent is wrong? How do you interpret what the Constitution means? When defining the words in the Constitution do you look to what the words mean in common usage today or at what they meant at the time the clause was written? Is there a higher law above the law that gives Constitutions and statutes their meaning? If there is not then where do the rules for interpreting Constitutions and statutes come from? Can you change those rules of interpretation? If so, when and how is it appropriate to change them? If they do not change, and are not a higher law, why are you so sure what they are? Why do judges interpret the law instead of making it? What happens if some judges on the Supreme Court in the past “made law” – what do we do about that now?
I could go on. The point is that judicial thinking is a lot more complicated than asking someone of they are an “activist judge” or not. I hope the committee is asking the right questions and that the press will actually cover the answers.

1 comment:

Lisa said...

I like your questions, and would have liked to hear her answers.