By NEOMI RAO,Wall Street Journal
She faces questions that must be answered
Yesterday President Barack Obama announced his nominee to replace retiring Supreme Court Justice David Souter. She is federal circuit court judge Sonia Sotomayor. What sorts of questions should senators and the American people ask a nominee to the Supreme Court?
- Do you believe that judges should use “empathy”to decide cases? If so,what’s the difference between empathy and judicial activism? The president has emphasized empathy as a paramount judicial quality. Polls show,however,that Americans want moderate judges who follow the law,not their hearts. Chief Justice John Roberts said in his confirmation hearings that judges should act like umpires —calling the plays,not making them. Mr. Obama has suggested he wants a home-run hitter.
- Do you believe that interpretations of the Constitution should evolve to keep up with the times? If so,how would you decide when the Constitution needs updating? The president has said he believes that the Constitution has to change to keep up with the times,and in Ms. Sotomayor he has probably not chosen a candidate who believes in following the original meaning of the text. Nonetheless,constitutional text and original meaning should provide some constraint on the scope of interpretation. The nominee should be able to state some guidelines and limits for interpretation,including whether and how she would consider international law or the constitutional law of other nations.
- Should Supreme Court justices be bound by precedent? All justices sometimes overrule previous decisions. So when is it appropriate to do so? Of course,this is the question that senators use to probe nominees of Republican presidents to see whether they would vote to overturn Roe v. Wade. For Ms. Sotomayor the question is whether she perceives any limits on the ability of the Supreme Court to read new rights into the Constitution.