Questions for Judge Sotomayor: What Are Her "Superprecedents?"

Hugh Hewitt
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Posted: May 27, 2009 12:07 PM
Questions for Judge Sotomayor: What Are Her "Superprecedents?"

Over at my blog, HughHewitt.com, I have written a couple of posts urging Republican senators and conservative activists to exercise great caution in their approach to the nomination of Judge Sotomayor.  The judge has a long record of service and accomplishment, and an inspiring personal story of hard work and achievement against a backdrop of a childhood lived under straightened circumstances.  This is the sort of story that Republicans cheered when it was part of the case for Justice Thomas and Justice Alito, and we ought to cheer it again.  America is a great, great land of opportunity that allows even its recent arrivals to the mainland to provide education and opportunity for their children.  Judge Sotomayor's parents must have made remarkable sacrifices for their children, and the judge must have matched those sacrifices with incredible hard work.

An appreciation for this background should be on the lips of every GOP senator before the questions begin, and the questions that follow should focus on the law, and especially on the rights and freedoms that allow for such incredible opportunity to flourish.  It would be time well spent for one or more Republican senators to focus their inquiries on the rights in the First, Second and Fifth Amendments.  In the future I will suggest some questions about the Tenth Amendment that also should make it into the conversation.

Free speech and religious freedom are under pressure in a variety of places across the U.S.  Judge Sotomayor ought to be asked about California's campaign finance laws that oblige donors to be listed in an era of internet search engines and which led to the harsh harassment of supporters of California's Proposition 8.  She ought also to be asked about the increasingly bizarre set of campaign finance rules that saw John McCain outspent by a factor of three or four to one by President Obama, and which allow millionaires and billionaires to self-finance huge war chests, or to use 527s and other devices to upend the appearance of balance in a campaign.

The judge ought to be asked about protections accorded the Free Exercise of Religion:  Do faith traditions have the right and will that right be protected to hold their creeds dear even in the face of huge changes in the culture?  Can she imagine a day when it would be constitutional to ban a preacher from inveighing against sex outside of marriage between a man and a woman?  Does she believe that the old thinking of "scarcity in bandwidth" still supports a so-called Fairness Doctrine which is censorship by bureaucrats?  What about "localism" rules the left proposes to use to hobble conservative talk radio?  How important is free and open and often fierce debate to her?

What does she think about guns?  Does she own one?  Has she ever owned one?  Know anyone who did or does?  And is the issue of the "individual right" versus "collective right" now firmly settled, indeed a "superprecedent?"

The idea of "superprecedents"  ("super-duper precedents" is what Arlen Specter called them) came up in the hearings for Chief Justice Robert and Justice Alito.  This is senatorial shorthand for: "You wouldn't vote to overturn this case, would you?"  Thus far no "superprecedent" has fallen under the Roberts Court, and it would be interesting to hear Judge Sotomayor's view of the idea that such cases exist.  The idea of superprecedents is a profoundly bad one, even in the context of the Heller case, which was rightly decided in my view, but much more so in the context of Roe and Casey.  But if the judge believes in them, let's discover how a precedent comes to achieve "super-duper" status.

Questioning should also occur on the subject of property rights.  Professor Richard Epstein is very troubled by Judge Sotomayor's joining in one decision in particular.  He wrote for Forbes.com:

The case involved  about as naked an abuse of government power as could be imagined. Bart
Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The "or else" was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: "We agree with the district court that [Wasser's] voluntary attempt to resolve appellants' demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court.

Individual rights are supposed to be the concern of the left, but the freedoms protected in the First, Second and Fifth Amendments are at the core of the American identity as a liberty-loving nation.  This is where Republican senators should focus their inquiries, and in a way that does not detract from Judge Sotomayor's genuine accomplishments.