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Barry, let me answer your questions.
First, Judge Sotomayor’s answer that Roe v. Wade is “settled law” is not necessarily “a bad thing” if she is explaining the Supreme Court’s jurisprudence. Chief Justice Roberts, at his confirmation hearing, acknowledged that Roe “is settled as a precedent of the Court.” Justices, when reviewing any case, must consider the principles of stare decisis, and nominees to the Supreme Court should show a respect for stare decisis. However, the Supreme Court does revisit (and reverse) its own “settled law” decisions–look at Lawrence v. Texas, a 2003 decision that overturned the “settled law” from the 1986 Bowers v. Hardwick case upholding state sodomy laws. What’s important to know is when a Supreme Court justice will be willing to revisit precedent. Consider Judge Sotomayor’s views on the subject. In response to questioning from Senator Cornyn, Judge Sotomayor said that due to “evolving social changes” and Congress passing new laws, “whatever was viewed as settled law previously will often get changed because Congress has changed something.” She further explained that “society evolves in terms of technology and other developments, and so the law is being applied to a new set of facts,” and she noted that
“There are new directions in the law in terms of the court. The court — Supreme Court is often looking at its precedents and considering whether, in certain circumstances whose precedent is owed deference for very important reasons, but the court takes a new direction. And those new directions rarely, if ever, come at the initiation of the court. They come because lawyers are encouraging the court to look at a situation in a new way, to consider it in a different way.”
Despite these statements, Judge Sotomayor, about an hour later that day, refused to directly answer a question for Senator Coburn, a medical doctor, as to whether advancements in technology with respect to viability of a fetus should have any “bearing as we look at the law.” Her answers appear inconsistent to me. She appears willing to revisit some “settled law,” but not necessarily Roe.
Second, I am not “fearful” of empathy as a human emotion; however, I am wary of judges who use empathy to decide cases. Cases should be decided based on the law and the facts, not on the feelings or personal experiences of the judge. Judge Sotomayor agrees, or so she said at her hearing.
I remain concerned about the obvious contradiction between Judge Sotomayor’s speeches and her statements at the hearing. I don’t know which Judge Sotomayor we will get on the Supreme Court if she is confirmed. As observed by Senators on the Committee, Judge Sotomayor’s testimony sounded a lot like Chief Justice Roberts, the opposite of her writings and speeches.
Third and finally, I agree that Senators should have questioned Judge Sotomayor on other issues, including religious liberties. I said as much in the letter the ACLJ submitted to the Judiciary Committee before the hearing began.
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