Sen. Grassley Questions Judge Sotomayor at Supreme Court Nomination Hearings

CQ Transcriptions
Thursday, July 16, 2009; 12:56 PM

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GRASSLEY: Good morning, Justice -- Judge Sotomayor. Yesterday, you said you would take a look at Baker v. Nelson, so I ask this question. You said you hadn't read Baker in a long time and would report back. You added that if Baker was precedent, you would uphold it based upon stare decisis, consistent with your stance in cases like Keyhole (ph), Roe v. Wade, Griswold, many others that you mentioned this week.

Baker involved an appeal from the Minnesota Supreme Court which held that a Minnesota law prohibiting same-sex marriage did not violate the 1st, the 8th, the 9th or the 14th Amendment to the Constitution. The Supreme Court, in a very short ruling, concluded on its merits that, quote, "The appeal is dismissed for want of substantial federal question."

Baker remains on the books as precedent. Will you respect the court's decision in Baker based upon stare decisis? And if not, why not?

SOTOMAYOR: As I indicated yesterday, I didn't remember Baker. And if I had studied it, it would have been in law school. You raised the question, and I did go back to look at Baker. In fact, I don't think I ever read it, even in law school.

Baker was decided at the time where jurisdiction over federal questions was mandatory before the Supreme Court. And the disposition by the Supreme Court, I believe, was what you related, Senator, which is a dismissal of the appeal raised on the Minnesota statute.

What I have learned is the question of -- it's what the meaning of that dismissal is is actually an issue that's being debated in existing litigation. As I indicated yesterday, I will follow precedent according to the doctrine of stare decisis. I can't prejudge what the precedent means in the issue comes before -- what a prior decision of the court means and its applicability to a particular issue is until that question is before me as a judge or a justice, if that should happen.

So at bottom, because the question is pending before a number of courts, the ABA would not permit me to comment on the merits of that. But as I indicated, I affirm that, with each holding of the court to the extent it is pertinent to the issues before the court, it has to be given the effects of stare decisis.

GRASSLEY: Am I supposed to interpret what you just said as anything different than what you said over the last three days in regard to Kelo or Roe or Griswold or any other precedents you said or precedents? Or would it be exactly in the same tone as you mentioned in previous days are previous precedents under stare decisis?

SOTOMAYOR: Well, those cases have holdings that are not open to dispute. The holdings are what they are. Their application to a particular situation will differ on what facts those situations present.

The same thing with the Nelson case which is what does the holding me. And that's what I understand is being litigated because it was a one-line decision by the Supreme Court and how it applies to a new situation is what's also -- would come before a court.

GRASSLEY: OK. My last question for your appearance before your committee involves a word I don't think that's showed up here yet -- vacuums. And it's a question that I asked Judge Roberts and Justice Alito. And it comes from a conversation I had -- a dialogue I had at a December hearing when Judge Souter was before us, now Justice Souter, involving the term "vacuums in law."

And I think the term "vacuums in law" comes from Souter himself as I'll read to you in just a moment. I probed Judge Souter about how he would interpret the Constitution and statutory law. In his response, Justice Souter talked about the court filling vacuums left by Congress. And there's several quotes that I can give you from 19 -- I guess it was 1990. But I will just read four or five lines of Judge Souter speaking to this committee.

GRASSLEY: Because if, in fact, the Congress will face the responsibility that goes with the 14th Amendment powers, then by definition, there, to that extent, not going to be a kind of vacuum of responsibility created in which the courts are going to be forced to take on problems which sometimes in the first instance might be better addressed by the political branches of government.

Both prior to that and after that, Judge Souter talked a lot about maybe the courts needed to fill vacuums. Do you agree with Justice Souter? Is it appropriate for the courts to fill vacuums in the law?

And let me quickly follow it up. Do you expect that you will fill in vacuums in the law left by Congress if you're confirmed to be an associate justice?

SOTOMAYOR: Senator Grassley, one of the things I say to my students when I'm teaching, brief writing, I start by saying to them, it's very dangerous to use analogies, because they're always imperfect. I wouldn't ever use Justice Souter's words, because they are his words, not mine.

I try always to use -- and this is what I tell my students to do -- is use simple words. Explain what you're doing without analogy. Just tell them what you're doing. And what I do is not described in the way -- or I wouldn't describe it in the way Justice Souter did.

Judges apply the law. They apply the holdings of precedent. And they look at how that fits into the new facts before them.

But you're not creating law. If that was an intent that Justice Souter was expressing -- and I doubt it -- that's not what judges do. Judges do what I just described, and that's not, in my mind, acting for Congress. It is interpreting Congress's intent as expressed in a statute and applying it to the new situation.

GRASSLEY: Thank you.

I'm done, Mr. Chairman.

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