Page 4 of 5   <       >

Transcript of Sen. Feinstein Questioning at Judge Sotomayor Confirmation Hearing

Here's the question. When the court decides to overrule a previous decision, is it important that it do so outright and in a way that is clear to everyone?

SOTOMAYOR: The doctrine of stare decisis, which means stand by a decision, stand by a prior decision, has a basic premise and that basic premise is that there is a value in society to predictability, consistency, fairness, evenhandedness in the law.

And the society has an important expectation that judges won't change the law based on personal whim or not, but that they will be guided by a humility they should show in the thinking of prior judges who have considered weighty questions and determined, as best as they could, given the tools they had at the time, to establish precedent.

There are circumstances in which a court should reexamine precedent and perhaps change its direction or perhaps reject it, but that should be done very, very cautiously. And I keep emphasizing the "verys" because the presumption is in favor of deference to precedent.

The question then becomes what are the factors you use to change it and then courts have looked at a variety of different factors, applying each in a balance and determining where that balance falls at a particular moment.

It is important to recognize, however, that the development of the law is step-by-step, case-by-case, and there are some situations in which there is a principled way to distinguish precedent from application to a new situation.

No, I do not believe a judge should act in an unprincipled way, but I recognize that both the doctrine of stare decisis starts from a presumption that deference should be given to precedence and that the development of the law is case-by-case. It's always a very fine balance.

FEINSTEIN: Thank you very much. I appreciate that.

I wanted to ask a question on executive power and national security. We have seen the executive branch push the boundaries of power, claiming sweeping authority to disregard acts of Congress, and that's one way to collect communications of Americans without warrants and to detain people indefinitely without due process.

Now, the president in literally hundreds of signing statements affixed to a signature on a bill indicated part of a bill that he would, in essence, disregard. He didn't veto the bill. He signed the bill and said, "But there are sections that I," in so many words, "will disregard."

FEINSTEIN: Most egregiously, in 2005, when Congress passed a bipartisan bill banning torture, President Bush signed it, but he also issued a signing statement saying he would only enforce the law, quote, "consistent with the constitutional authority of the president to supervise the unitary executive branch and consistent with the constitutional limitations on the judicial power," end quote.

In other words, although he signed the bill, it was widely interpreted that he was asserting the right not to follow it.

<             4        >

© 2009 The Washington Post Company