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Questions for Sonia Sotomayor:

GMU law prof Neomi Rao has a list of questions she thinks Senators on the Judiciary Committee should ask Sonia Sotomayor at her confirmation hearing.

Pete Freans (mail):
I think the "empathy" question is a valid one, coupled with a past statement which she suggests that she could better adjudicate matters related to Latino women than a white caucasian male would. I have not read many of her opinions, but I think it is safe to say that she is not a constitutional texualist.
5.27.2009 9:22am
Pete Freans (mail):
"Latina", rather
5.27.2009 9:24am
John Howard (eggandsperm.org) (mail) (www):
Whether she believes the right to procreate with one's own genes is one of the fundamental rights protected by marriage, or if a marriage could be prohibited by law from attempting to procreate.

Whether she believes Congress could prohibit attempts at human cloning and genetic engineering, or if there is a right to create human beings from other methods besides sexual reproduction of a man and a woman.

Whether she believes people should have the same right to procreate with a person of either sex, or only with a person of the other sex.

Whether she has more empathy for children of sperm and egg donors to know their parents, or for individuals who want to use donor gametes to have offspring.
5.27.2009 9:34am
asimplemind:
Uh, John Howard, you said:
Whether she believes people should have the same right to procreate with a person of either sex, or only with a person of the other sex.

I'm fairly certain that biology, and not US law, requires procreation with a person of the opposite sex. It's the whole sperm/egg thing.

If you're suggesting that same sex couples be permitted to have children, that's something altogether different than the act of procreation, which, of necessity, requires a man and a woman.
5.27.2009 9:39am
markm (mail):
Diddens and to whom she is "empathetic". It seems to me that her empathy matches Obama's - corrupt officials first.
5.27.2009 9:50am
Baelln1:
...first things first:

Article VI requires a formal oath/affirmation to "support this Constitution".

Request the nominee clearly state what that oath means to her.
5.27.2009 9:53am
Dan28 (mail):
Those are all valid questions. In fact, they are softballs. If Sotomayer can't hit that line of questioning out of the park she shouldn't be on the court.
5.27.2009 9:56am
rick.felt:
asimplemind:

Biotechnology FAIL.
5.27.2009 10:03am
ChrisIowa (mail):
Have you paid your taxes yet?
5.27.2009 10:06am
Kevin P. (mail):
Does she feel empathy towards people, particularly poor citizens who want to defend themselves in their own homes with a gun?
5.27.2009 10:06am
Oren:
It's been a while since we've heard from the single-issue-world of John Howard. Refreshing to know he's still obsessing about it.
5.27.2009 10:09am
Adam K:
Did Thomas's ostensible "empathy" matter to anyone? After all:

"I have followed this man's career for some time," said President George H.W. Bush of Clarence Thomas in July 1991. "He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor."
5.27.2009 10:12am
rick.felt:
"In two employment discrimination cases, the facts are identical: the employees are paid less than their colleagues because their employer dislikes the employee's race and sex. In one case, the employee is a poor Puerto Rican woman; in the other, the employee is a rich German man.

(1) Do you believe that it is permissible for the court to reach opposite conclusions in these two cases?

(2) Compared to a white Jewish malejudge, would a Latina judge be more, less, or equally likely to reach the correct results in these two cases?"
5.27.2009 10:12am
John Howard (eggandsperm.org) (mail) (www):
asimplemind, if she's like most people, she is as ignorant as you are about efforts to achieve same-sex procreation. But if she is as closed minded to the possibility that the question raises that she just assumes the questioner is crazy, and says condescendingly that she is "fairly sure" it is impossible, well, that sort of mind should not be on the Supreme Court, where decisions should not be made in closed-minded certainty of the status quo.
5.27.2009 10:13am
rick.felt:
"I have followed this man's career for some time," said President George H.W. Bush of Clarence Thomas in July 1991. "He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor."

Let's take a look at these descriptors, shall we?

-Delightful
-Warm
-Intelligent
-Has a great deal of empathy
-Has a wonderful sense of humor

No, I don't think that "empathy" mattered with Thomas, because it's irrelevant to his qualifications for the Supreme Court... just like whether he's "delightful," "warm," or in possession of "a wonderful sense of humor." He could be a curmudgeonly bastard, and that wouldn't make him any less qualified for the Court.
5.27.2009 10:16am
SeaDrive:
Wouldn't it be fun if we could ask our Congressmen and Senators questions like this on national TV! (Campaigns allow too much flexibility to control the questioning and tune the answers to the audience.) And don't you hate it when some Senator gets the floor and he talks for 5 minutes before actually posing any kind of query to the nominee.

I agree with Dan28. These are all obvious questions that she will have prepared answers for, though that does not lessen interest in what her answers are. But I wonder if any nominee is going to say something about respecting precedent that is going to shock! shock! the Senate.

Obama brought on himself (and all of us) but I, for one, am tired of the navel-gazing on the subject of empathy. If it's a code word for something important then that thing is one of the basic elements of judicial philosophy that is explored with every nominee of either right or left. I will be only too happy when it's all over and the word can be given back to the "caring professions" for their exclusive use.
5.27.2009 10:18am
rick.felt:
Does she feel empathy towards people, particularly poor citizens who want to defend themselves in their own homes with a gun?

A puckish Republican Senator would vote against Sotomayor, and would issue the following statement in doing so:
Judge Sotomayor consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation that wants to condemn private property against upholding American's individual rights to keep and bear arms or own property. If there is a case involving an employer municipality and an employee landowner and the Supreme Court has not given clear direction, she'll rule in favor of the employer municipality. If there's a claim between prosecutors and defendants in a gun possession case, if the Supreme Court has not provided a clear rule of decision, then she'll rule in favor of the state.
5.27.2009 10:25am
Oren:

But if she is as closed minded to the possibility that the question raises that she just assumes the questioner is crazy, and says condescendingly that she is "fairly sure" it is impossible, well, that sort of mind should not be on the Supreme Court, where decisions should not be made in closed-minded certainty of the status quo.

Exactly wrong again John, the Supreme Court decides things based only upon the factual record of the actual case before them. This is the heart of the Art III prescription that the judicial power extends only to cases and controversies -- a limitation that means that the Supreme Court can only decide things based on the status quo (at least at the time of filing).

It would be manifestly improper for the Supreme Court to say anything about same sex procreation until a live case or controversy involving actual SSP came before them. They do not issue advisory opinions.
5.27.2009 10:28am
byomtov (mail):
Compared to a white Jewish malejudge, would a Latina judge be more, less, or equally likely to reach the correct results in these two cases?"

A Latina would be more likely to reach correct results than a malejudge of any ethnicity, religion, or gender. What we want is benejudges.
5.27.2009 10:32am
rick.felt:
A Latina would be more likely to reach correct results than a malejudge of any ethnicity, religion, or gender. What we want is benejudges.

Tremendous.
5.27.2009 10:35am
John Howard (eggandsperm.org) (mail) (www):
That's why we have to ask questions of the nominees before they get on the court. And why we seek well-rounded and thoughtful people who have long-term vision and concern for how a decision will effect society. If they turn a blind eye to the way the world is changing, and just mete out ignorant rulings based on the meager scraps of evidence that other ignorant judges have limited the case to, that'll likely result in future suckage for human rights and dignity, and lead to eugenics and coercive genetic enhancement. It's exactly why we need a justice who is more like a poet than a program, someone like Wendell Berry, for example.
5.27.2009 10:46am
SeaDrive:

And why we seek well-rounded and thoughtful people who have long-term vision and concern for how a decision will effect society.


We seek this in our justices since it's beyond hope that we find it in Congress?
5.27.2009 11:01am
Mark Buehner (mail):
I agree. Also I want a full session covering the application of the bill of rights to sentient robots and self-aware computer networks, particularly vis-a-vis whether nuclear genocide constitutes self-defense.

We need answers now before its too late.
5.27.2009 11:04am
John Howard (eggandsperm.org) (mail) (www):
SeaDrive, hopefully we seek it in Congressmen, too. But the same censorship of future issues seems to apply to the questions we are allowed to ask candidates for Congress, or for the Presidency. It's like we aren't allowed to ask how they feel about Transhumanism, same-sex conception, genetic engineering, and they aren't allowed to know about it. We can't let lawyers drive, they don't care where they are going.
5.27.2009 11:15am
DG:
{ agree. Also I want a full session covering the application of the bill of rights to sentient robots and self-aware computer networks, particularly vis-a-vis whether nuclear genocide constitutes self-defense.

We need answers now before its too late.}

While you lawyers get answers to those questions, the rest of us will be killing those filthy robot scum.
5.27.2009 11:22am
Franklin Drackman:
Seeing as how Type 1 Diabetics have a life expectancy some 10-15 yrs less than non diabetics, I'd be interested in Judge Sotomayors...
1: Most recent Hemoglobin A1c, a measure of diabetic control
2: Urine Microalbumin, a marker for future kidney damage..
3: Urine Screen for Cotinine, a metablolite of nicotine... Tobacco's not illegal yet, just interested..
4: Notarized copy of her Birth Certificate... she wouldn't be the first Latino/a to lie about her age... anyone remember Luis Tiant???
and I wouldn't ask why she's not married like they asked Souter... I think I know why...
She looks like Manuel Noriega... 11 years on the bench wouldn't be so bad... means her sucessor will take over toward the end of the 2d Palin term...
5.27.2009 11:37am
rosetta's stones:

It would be manifestly improper for the Supreme Court to say anything about same sex procreation until a live case or controversy involving actual SSP came before them. They do not issue advisory opinions.


Right. They just issue trimesters.
5.27.2009 11:39am
CJColucci:
As others have pointed out, these are softball questions that anyone with the chops to be on any court in the land ought to be able to knock out of the park. And this isn't just a question of skill. I suspect that 90-plus out of a hundred nominees would give roughly the same roughly meaningless answers, and would actually believe that they believed what they were saying.
5.27.2009 12:09pm
RPT (mail):
AdamK:

Thanks for the Bush empathy cite. Thomas' empathy illustrates the rule of IOKIYAAR.

This nomination of the "dumb" and "not very smart" "Maria" Sotomayor is certainly bringing out the hidden prejudices in many.
5.27.2009 12:18pm
RPT (mail):
"During the closing days of the 1980 presidential campaign, Reagan pledged to appoint a woman to the Supreme Court, saying one of the first openings "will be filled by the most qualified woman I can find...it is time for a woman to sit among our highest jurists."

Reagan also pledged to appoint women to lower federal courts "in an effort to bring about a better balance on the federal bench."

With his appointment of Justice Sandra Day O'Connor on July 7, 1981, Reagan kept his promise, saying "I've long believed that the time has come for the highest court in our land to include not only distinguished men, but distinguished women as well."

Reagan and Bush are good precedents.
5.27.2009 12:36pm
Oren:

If they turn a blind eye to the way the world is changing, and just mete out ignorant rulings based on the meager scraps of evidence that other ignorant judges have limited the case to ...

If an appellate court feels that the lower court has not sufficiently fleshed out the factual underpinnings of the case, they will remand with instruction to develop the factual record. What they are absolutely forbidden from doing is basing their decisions on facts not in the records. They are courts of law, not triers of fact.
5.27.2009 1:10pm
MarkField (mail):

Also I want a full session covering the application of the bill of rights to sentient robots and self-aware computer networks, particularly vis-a-vis whether nuclear genocide constitutes self-defense.


When will they activate SkyNet?
5.27.2009 1:11pm
A. Zarkov (mail):
Oren:

It's been a while since we've heard from the single-issue-world of John Howard. Refreshing to know he's still obsessing about it.

Do you think your statement contributes to the discussion? Attacking individuals really serves no purpose other than to lower the tone of the discourse here. I don't expect much better from some others, but you are clearly one of the more intelligent posters, and I hate to see you do the same thing.
5.27.2009 1:18pm
Oren:
Zarkov, you are right. My apologies for my part in crapping up this thread.
5.27.2009 1:22pm
Oren:
On the other hand, I would like to excise and reaffirm my comments that John seems to have a different view of what an appellate court can do with respect to the factual record than any authority that I have ever read on the subject.

Appellate courts can rule (or remand to develop the record) on the facts before them, no more, no less.
5.27.2009 1:25pm
rosetta's stones:

If an appellate court feels that the lower court has not sufficiently fleshed out the factual underpinnings of the case, they will remand with instruction to develop the factual record.


Or, they sometimes flesh out their own underpinnngs, and create trimesters.
5.27.2009 1:32pm
Sarcastro (www):
rosetta's stones has a point. Courts never indulge in line drawing, except for abortion.
5.27.2009 2:03pm
rosetta's stones:
Well, I wouldn't go that far. When speaking of courts acting as legislatures, it's more common than just one occurrence.
5.27.2009 2:14pm
Closet Libertarian (www):
Is there such a thing as reverse discrimination? If so, under what facts?

How long should racial preferences remain legal?
5.27.2009 2:20pm
Oren:

Or, they sometimes flesh out their own underpinnngs, and create trimesters.

The rigid trimester approach was reversed 15 years later in Casey, lending some weight to the notion that the Roe Court should have stuck to the record instead of going on a limb.
5.27.2009 2:23pm
John Howard (eggandsperm.org) (mail) (www):
And like abortion, the court could face a case of a couple wanting to genetically enhance their child, or a same-sex couple wanting to try to combine their genetic material, or a person that wants to clone their mother, up against a federal law or state law that prohibits doing so, like many states have in varying degrees, and the PCBE recommended Congress enact in 2004. We know that people tend to come down one of two ways on issues like this. They are either laissez-faire libertarian absolute-reproduction-rights transhumanist pigs, or they are wise bioconservatives. The facts are the same for everybody, but some people think its OK to do genetic engineering and there's a right to manufacture children (or just manufacture 'people' as far as labs and doctors are concerned) however one wishes, and others who might see a supportable basis in prohibiting it. I think we need to find out her Transhumanist ick factor.

And about marriage:

Does she agree with the dicta in Lawrence v Texas that marriage is, at minimum, "about the right to have sexual intercourse?"

Does she think the right to create children is related to marriage?

Does she think it would be OK to prohibit a marriage from even attempting to conceive children together? What about the right to use their own gametes and the right to use donated gametes? Does she have empathy for donor-conceived children or for infertile neurotic selfish people who want to use donor gametes?
5.27.2009 2:47pm
rick.felt:
How long should racial preferences remain legal?

19 more years, according to Sandra O. I can live with that, if they really end then.
5.27.2009 2:59pm
Oren:

And like abortion, the court could face a case of a couple wanting to genetically enhance their child, or a same-sex couple wanting to try to combine their genetic material, or a person that wants to clone their mother, up against a federal law or state law that prohibits doing so, like many states have in varying degrees, and the PCBE recommended Congress enact in 2004.

So your question involves a plaintiff that does not yet exist, using a technology that is not yet possible* in the face of a law that does not yet exist. Did I get that right?

* I work in biotech, I am keenly aware of the limits of our abilities. No, I don't do genetic engineering, so this has no impact on me personally.
5.27.2009 6:39pm
John Howard (eggandsperm.org) (mail) (www):
What does that matter? The question of whether there is a right to attempt those things is independent of a plaintiff or technology existing. Even if those things never develop, there are implications arising from whether there is a right to try them or not. And if only we could re-seat the whole court every time a new plaintiff and question comes up. The problem is we choose the justices 20 years in advance of the important questions they will decide.
5.27.2009 7:39pm
Oren:

The question of whether there is a right to attempt those things is independent of a plaintiff or technology existing.

No, it depends keenly on the particular facts and the particular law. The founders were very clear that judges decide cases and controversies, not hypothetical disputes or abstract debates about the scope of a right. Their job consists entirely of the space between the rubber and the road.

Now, if you wanted to be productive about it, you can ask her about the general framework that the Court should apply to emerging technologies unforeseen by the founders, independently of the nature of the actual future technology. For instance, does she believe in the sort of functional-analysis of technology that Orin talks about in his email cases or does she subscribe more to the effect-analysis that he often derides? That is, does it matter how a technology works, or what it does.
5.27.2009 8:10pm
John Howard (eggandsperm.org) (mail) (www):
Effect-analysis is called for here, because it doesn't matter how it works. It doesn't matter how a man and a woman create a baby, we are only concerned with whether they have a right to do it or not. Does she think that, general framework-wise, there is a right for two women to create a baby together, without a man, or to create children that are not from a man and a woman? If she starts blabbing about how she's not an expert in the technology involved, then she's saying there is a right to do it and it can't be prohibited, and that means she's an idiot unqualified to sit on the court.
5.27.2009 9:06pm
Kevin Horn (mail) (www):
We have to ask questions of the nominees before they get on the court. And why we seek well-rounded and thoughtful people who have long-term vision and concern for how a decision will effect society. If they turn a blind eye to the way the world is changing, and just mete out ignorant rulings based on the meager scraps of evidence that other ignorant judges have limited the case to, that'll likely result in future suckage for human rights and dignity, and lead to eugenics and coercive genetic enhancement.
5.30.2009 7:17pm

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