Legal News

Sotomayor May Get Hardball Questions From Her Own Party

By Nathan Koppel

Editor’s note: The LB has invited various Supreme Court heavyweights to help us pre-game the Sotomayor confirmations hearings. Fine tune your TV’s, folks: We’re only about 65 hours away from SCOTUS time.

Andy Pincus, a partner in Mayer Brown’s Supreme Court practice, who has argued 19 cases before the high court, says Sotomayor may draw some friendly fire from Democratic senators:

Pre-hearing speculation has focused on the tough questioning that will come from Republicans on a variety of hot-button issues-the Ricci case, gun control, and abortion, for example. But the Democrats won't restrict themselves to softballs (although with David Cone listed as a witness, there certainly will be some about baseball). The topics on which Democrats pressed Chief Justice Roberts and Justice Alito during their confirmation hearings haven't gone away, and Judge Sotomayor is likely to face attempts to elicit her views.

Take terrorism-related issues, for example. Senator Leahy and other Democrats asked the two prior nominees about constitutional limits on indefinite detention of suspected terrorists, the application of due process to military tribunals, and the President's ability to override generally-applicable legal limitations, such as the prohibition of torture and limits on interception of Americans' communications. We don't know much about how Judge Sotomayor would approach these issues, many of which remain in the headlines as the Obama Administration finds itself unable to devise quick solutions to detainee and intelligence issues.

Another topic certain to come up is the death penalty. The Court has not been receptive to claims by death row defendants: just last month it rejected an inmate's attempt to gain access to evidence for DNA testing, holding in a 5-4 decision that due process did not require States to provide such access. And the Court has not been clear about the extent to which the Constitution permits an execution to go forward in the face of a legitimate claim of actual innocence.

How will Judge Sotomayor respond to these inquiries? Chief Justice Roberts and Justice Alito provided little insight into their views, explaining that they could not prejudge issues that might come before the Court. It would be ironic if Democrats sought to impose a higher standard on Judge Sotomayor.

Full post as published by Law Blog - WSJ.com on July 10, 2009 (boomark / email).