When Senators get a chance to vet Supreme Court nominee Sonia Sotomayor, there are some important questions that they may want to get to the bottom of.

Judicial philosophy - Ms. Sotomayor, in the Berkeley La Raza Law Journal, you were quoted in your speech “A Latina Judge’s Voice” as saying:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”    

You also said “our gender and national origins may and will make a difference in our judging.”

Finally, you urged some advocacy groups “to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will and are making.”

Impartial justice is the expected standard in America’s courts.  Judges are to apply the law, not make decisions based on the group identity of the parties involved.  Otherwise, justice would not be blind and the scales could be tipped toward favoritism.

Question:  Will you judge according to the rule of law or according to your “empathy” for particular parties in a case? Do you believe that government and corporate policies should openly discriminate against white males by employing affirmative action?

National sovereignty – In The International Judge, a book for which you wrote a foreword, there is this observation on p. 228:

“For instance, a national constitution might enshrine international law, including international decisions, as the supreme law of the land, superior to the constitution itself; in such circumstances, national judges are obliged to recognize the jurisprudence of international bodies.”

Several past and current Supreme Court justices (O’Connor, Breyer, Kennedy, Ginsburg) say that U.S. courts should incorporate international opinion and foreign court decisions. In several key cases, such as Lawrence v. Texas (2003) and Roper vs. Simmons (2005), the majority cited international sources as part of their rationale.

Question: Do you believe that duly elected American state legislators are less qualified to make laws for American citizens than are foreign lawmakers and judges?  In cases where U.S. law conflicts with international legal opinions, would you rule against the U.S. law? If not, why not?

Role of the courts –  Article I of the Constitution vests “all legislative powers herein” to Congress. Article II assigns “executive power” to the president. Article III creates “judicial power” that is “vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Nowhere in the main text, the Bill of Rights or in any other amendments does the Constitution give courts the power to “make policy,” which is a legislative function. Continued...