When the Senate Judiciary Committee begins grilling Supreme Court nominee Judge Sonia Sotomayor this week, one question will almost certainly not be on the agenda. Ironically, it is the question that is most important to President Obama, if his statement about the main quality he seeks in a high-court appointee is anything to go by.
Obama told Planned Parenthood’s national conference in July 2007 that, if elected President, the criteria he would use to select Supreme Court judges would be their personal feelings – specifically, their ability to feel “empathy.” In fact, the least appropriate question for Judge Sotomayor would be about her personal feelings on Planned Parenthood’s core issue – abortion – or on any other politically charged issue that may come before the Supreme Court.
What Americans need to know is whether Sotomayor is capable of deciding cases based on constitutional principles, apart from whether she “empathizes” with plaintiffs or defendants. Discerning her suitability for the high court will require senators to ask questions that will bring the core of her judicial philosophy into sharp focus. A look at questions asked of the last two Supreme Court nominees gives clues as to what to ask – and whatnot to ask – as the senators seek to discover the intellectual approach the nominee would bring to the bench.
PERSONAL OPINIONS AND COMMITMENTS
Both Chief Justice John Roberts and Justice Samuel Alito made it clear during their confirmation hearings that asking nominees to state their personal opinion on any hypothetical case, or to make a commitment on how they would decide a case, is inappropriate. Roberts’s response to then-Sen. Joe Biden (D-Del.), on judicial involvement in end-of-life decisions showed he understood that, as a judge, individual opinions and feelings should not control his decisions.
BIDEN: “[J]ust talk to me as a father . . . [w]hat do you feel?”
ROBERTS: “No, I’m not going to consider issues like that in the context as a father or a husband or anything else.”
Likewise, neither Roberts nor Alito were willing to make commitments on how they would decide cases on controversial topics. Justice Alito stated, in response to questions from Senator Kohl about abortion: “[I]n light of the current state of litigation relating to the issue of abortion . . . I don’t believe that it’s appropriate for me to go further than that. . . .”