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Guest post from Brian Darling
Senator Tom Coburn (R-OK) finished an excellent line of questioning this morning and Sotomayor’s answers were telling. Obama’s nominee to the Supreme Court could not answer a simple question as to “do you have a personal opinion, or can you give me your opinion, of whether or not in this county I personally, as an individual citizen, have a right to self defense?” Sotomayor answered, “I --- as I said, I don’t know.” Senator Coburn asked some questions that are commons sense questions on the clear language of the Constitution and Judge Sotomayor failed in explaining, in an easy to understand manner, what her views are on the right of self defense. Average Americans should be concerned that this nominee may be concealing hostility to the idea that individuals have a natural right, as recognized by the 2nd Amendment to the Constitution, to self defense. Coburn asked about the settled law on abortion and Sotomayor proceeded to cite case law without explaining her views on the issue. Clearly, nominees are reluctant to prejudice any future case that comes before the High Court, yet these Senators have a right to know, pursuant to the Constitutional duty of “consent” to nominees, the judicial philosophy of a nominee. Sotomayor followed the precedent of other, both Republican and Democrat, nominees in making the hearings the functional equivalent of a Constitutional law oral exam. But these Senators have a duty to do more and should block any nominee who refuses to answer questions that elicit evidence of the nominee’s judicial philosophy and temperament. This may be more of a separation of powers issue than a partisan issue, because the nominees have consistently refused to answer direct questions on the pre-text that they may prejudice future opinions. Republican and Democrat Senators should protect the Constitutional role of the Senate to extract direct answers out of nominees and should not confirm any nominee that is evasive or hides their view of the Constitution that is the central issue in this confirmation process. Coburn asked if the right to gun ownership was fundamental and Sotomayor answered with a dodge. Sotomayor redefined the term fundamental right to mean, “but it doesn’t have the same meaning that common people understand that word to mean. To most people, the word by its dictionary term is critically important, central, fundamental. It’s sort of a rock basis. These meanings are not how the law uses that term when it comes to what the states can do or not do.”
Sotomayor redefined “fundamental” to mean “that Amendment (the 2nd Amendment) of the Constitution incorporated against the states.” Therefore, one does not have a fundamental right to self defense with a firearm, according to Sotomayor, because the Supreme Court has yet to incorporate that explicit recognition in the Constitution of a natural right of all men and women. Agreed, that one could argue that the Sotomayor definition of “fundamental” is arguable, yet it was non responsive to Senator Coburn’s direct question. A wise nominee can contort and justify prior decisions, yet why can’t this nominee say if she believes that the 2nd Amendment is arguably a fundamental right for all Americans. Most Americans believe that their right to self defense and the right to own a firearm is fundamental, as did the Supreme Court in the landmark Heller case which held that the 2nd Amendment is an individual right. The actual questions and answers tell the story better than I can. Please read and draw your own conclusions: Coburn: Let me follow up with one other question. As a citizen of this country, do you believe innately in my ability to have self-defense of myself -- personal self-defense? Do I have a right to personal self- defense? Sotomayor: I'm trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a Constitutional right to self-defense? And I can't think of one. I could be wrong, but I can't think of one. Generally, as I understand, most criminal law statutes are passed by states. And I'm also trying to think if there's any federal law that includes a self-defense provision or not. I just can't. What I was attempting to explain is that the issue of self- defense is usually defined in criminal statutes by the state's laws. And I would think, although I haven't studied the -- all of the state's laws, I'm intimately familiar with New York. Coburn: But do you have an opinion, or can you give me your opinion, of whether or not in this country I personally, as an individual citizen, have a right to self-defense? Sotomayor: I -- as I said, I don't know. Clearly this nominee has the intellectual heft and resume to be on the Supreme Court, yet this nominee's views on fundamental rights may have disqualified her to serve a lifetime appointment to the highest court in the land. Do you trust a nominee to serve on the Supreme Court who can’t answer the question of whether you have a constitutional right to defend yourself and your family against a violent threat? Most Americans would say no.
Brian Darling is Director of Senate Relations with the Heritage Foundation
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