Sotomayor Responds to Questions for the Record

By on 07/21/2009 @ 03:33 PM

Supreme Court nominee Sonia Sotomayor has answered the final round of questions, this time submitted in written form, from five Republican senators on the Senate Judiciary Committee. You can view PDFs of the senators' questions and Sotomayor's answers on the Senate Judiciary website. For your convenience, we picked out a few of her answers that we found notable:

Senator Tom Coburn (R-OK):
Under what circumstances do you think racial preferences are unconstitutional?
When do you think they are in violation of the 1964 Civil Rights Act?
What do you think are compelling reasons to engage in racial preferences or bias?

Sotomayor: Governmental use of racial classifications violates the Equal Protection Clause of the Fourteenth Amendment unless the classifications are narrowly tailored to serve a compelling state interest. The Supreme Court has identified several governmental interests that are sufficiently compelling to permit racial classifications, including remedying the effects of past discrimination, see, e.g., Wygant v. Jackson Board of Education, 476 U.S. 267, 274 (1986), and securing the benefits that flow from a diverse student body in the context of higher education, see, e.g., Grutter v. Bollinger, 539 U.S. 306, 330 (2003); Gratz v. Bollinger, 539 U.S. 244, 268 (2003). In addition, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits employment discrimination on the basis of race, including both intentional discrimination and, in certain situations, practices that have a disproportionately adverse effect on minorities even though they may not be intended to discriminate in fact. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971).

Senator Chuck Grassley (R-IA):
Do you support maintaining “settled” law? What if a case becomes “unsettled” or refined by subsequent rulings? Is it possible that a time could be reached when the entire decision should be overruled?

Sotomayor: The Supreme Court’s precedents are entitled to stare decisis effect. The doctrine of stare decisis promotes evenhandedness, fairness, consistency, predictability, and reliability. The Court, however, has made clear that stare decisis is not an inexorable command. In some circumstances, the Court will revisit its prior precedent. The Court has set forth factors it uses to decide when to do so. Those factors include: whether the prior precedent has proved workable as it has been applied by the lower courts; whether society has come to rely on the Court’s decisions in the area of law at issue; whether developments in related areas of the law have undermined the value of the prior precedent; whether the factual premises underlying the prior precedent have changed since the prior case was decided; and whether the Court has reaffirmed the prior case.

Senator Jeff Sessions (R-AL):
The Supreme Court in the Boumedienne case indicated, as a part of the multi-factor test for determining whether constitutional habeas was available to certain alien enemy combatants held outside the United State, that one of the factors to consider, both as a threshold matter for ascertaining whether the habeas applies at all and how it applies, were the practical difficulties caused by this application. Please explain what types of practical difficulties it would be appropriate to consider for purposes of this analysis...:

Sotomayor: The Supreme Court in Boumediene v. Bush, 128 S.Ct. 2229 (2008), held that “aliens designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba” are “entitled to the privilege of habeas corpus to challenge the legality of their detention.” Id. at 2240, 2262. In reaching that conclusion, the Court said that “at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.” Id. at 2259. Whether and how those factors should be applied, including the extent to which the courts should defer to the Executive Branch’s views about certain “practical obstacles,” are questions currently before the lower courts in cases involving the detention of certain individuals at Bagram Airfield, Afghanistan. These cases could well come before the Supreme Court, and so I would not address the scope or application of the Boumediene factors in this context.