'Real Debate' In Sotomayor's Confirmation Hearing Will Be About Power Of Legislators, Judiciary, Opinion Piece Says

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Also Included In: Women's Health / Gynecology
Article Date: 11 Jun 2009 - 6:00 PDT

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"There is something profound, but also something superficial, about the debate that occurs every time a Supreme Court justice is nominated," Kevin Baine, a First Amendment lawyer and former clerk to Supreme Court Justice Clarence Thomas, writes in a Washington Post opinion piece in reaction to President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court. According to Baine, the "debate is profound because it probes the delicate role of an independent judiciary in a democracy," but it is "superficial when it turns into an argument over whether judges should be making law or simply interpreting it." He continues, "For a nominee, the safe answer is that the Supreme Court should interpret law." However, it would be "refreshing" if a nominee "acknowledged that courts, including the Supreme Court, make law all the time," he adds. As evidence of this, Baine writes that "basic rules and policies that govern our relations with each other were developed entirely by judges," including principles "that are not remotely controversial," such as obligations to honor contracts and being held liable for damages resulting from negligence. According to Baine, the "controversy arises principally when the court strikes down a law enacted by Congress or a state legislature," such as when the Supreme Court overturned state laws prohibiting abortion in Roe v. Wade. What makes Roe and other decisions striking down state laws controversial is "not that the court was making law but that it was remaking law enacted by elected representatives," he writes.

Baine asks, "So how should a Supreme Court justice go about resolving the constitutional issues that divide the court?" He writes that senators in Sotomayor's confirmation hearing likely will focus on specific issues, such as whether she agrees with a constitutional right to abortion. "The real debate, however, will be over who gets to decide the most controversial issues of the day -- elected representatives who are responsive to majority will or an independent judiciary that is (relatively) immune from public pressure," according to Baine. Although legislation "can be revoked at any time for any reason," a "constitutional decision by the Supreme Court ... is for all time," he adds (Baine, Washington Post, 6/9).

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