LEAHY: Senator Grassley?
GRASSLEY: Good morning, Justice -- Judge Sotomayor. Yesterday,
you said you would take a look at Baker v. Nelson, so I ask this
question. You said you hadn't read Baker in a long time and would
report back. You added that if Baker was precedent, you would uphold
it based upon stare decisis, consistent with your stance in cases like
Keyhole, Roe v. Wade, Griswold, many others that you mentioned
this week.
Baker involved an appeal from the Minnesota Supreme Court which
held that a Minnesota law prohibiting same-sex marriage did not
violate the 1st, the 8th, the 9th or the 14th Amendment to the
Constitution. The Supreme Court, in a very short ruling, concluded on
its merits that, quote, "The appeal is dismissed for want of
substantial federal question."
Baker remains on the books as precedent. Will you respect the
court's decision in Baker based upon stare decisis? And if not, why
not?
SOTOMAYOR: As I indicated yesterday, I didn't remember Baker.
And if I had studied it, it would have been in law school. You raised
the question, and I did go back to look at Baker. In fact, I don't
think I ever read it, even in law school.
Baker was decided at the time where jurisdiction over federal
questions was mandatory before the Supreme Court. And the disposition
by the Supreme Court, I believe, was what you related, Senator, which
is a dismissal of the appeal raised on the Minnesota statute.
What I have learned is the question of -- it's what the meaning
of that dismissal is is actually an issue that's being debated in
existing litigation. As I indicated yesterday, I will follow
precedent according to the doctrine of stare decisis. I can't
prejudge what the precedent means in the issue comes before -- what a
prior decision of the court means and its applicability to a
particular issue is until that question is before me as a judge or a
justice, if that should happen.
So at bottom, because the question is pending before a number of
courts, the ABA would not permit me to comment on the merits of that.
But as I indicated, I affirm that, with each holding of the court to
the extent it is pertinent to the issues before the court, it has to
be given the effects of stare decisis.
GRASSLEY: Am I supposed to interpret what you just said as
anything different than what you said over the last three days in
regard to Kelo or Roe or Griswold or any other precedents you said or
precedents? Or would it be exactly in the same tone as you mentioned
in previous days are previous precedents under stare decisis?
SOTOMAYOR: Well, those cases have holdings that are not open to
dispute. The holdings are what they are. Their application to a
particular situation will differ on what facts those situations
present.
The same thing with the Nelson case which is what does the
holding me. And that's what I understand is being litigated because
it was a one-line decision by the Supreme Court and how it applies to
a new situation is what's also -- would come before a court.
GRASSLEY: OK. My last question for your appearance before your
committee involves a word I don't think that's showed up here yet --
vacuums. And it's a question that I asked Judge Roberts and Justice
Alito. And it comes from a conversation I had -- a dialogue I had at
a December hearing when Judge Souter was before us, now Justice
Souter, involving the term "vacuums in law."
And I think the term "vacuums in law" comes from Souter himself
as I'll read to you in just a moment. I probed Judge Souter about how
he would interpret the Constitution and statutory law. In his
response, Justice Souter talked about the court filling vacuums left
by Congress. And there's several quotes that I can give you from 19
-- I guess it was 1990. But I will just read four or five lines of
Judge Souter speaking to this committee.
GRASSLEY: Because if, in fact, the Congress will face the
responsibility that goes with the 14th Amendment powers, then by
definition, there, to that extent, not going to be a kind of vacuum of
responsibility created in which the courts are going to be forced to
take on problems which sometimes in the first instance might be better
addressed by the political branches of government.
Both prior to that and after that, Judge Souter talked a lot
about maybe the courts needed to fill vacuums. Do you agree with
Justice Souter? Is it appropriate for the courts to fill vacuums in
the law?
And let me quickly follow it up. Do you expect that you will
fill in vacuums in the law left by Congress if you're confirmed to be
an associate justice?
SOTOMAYOR: Senator Grassley, one of the things I say to my
students when I'm teaching, brief writing, I start by saying to them,
it's very dangerous to use analogies, because they're always
imperfect. I wouldn't ever use Justice Souter's words, because they
are his words, not mine.
I try always to use -- and this is what I tell my students to do
-- is use simple words. Explain what you're doing without analogy.
Just tell them what you're doing. And what I do is not described in
the way -- or I wouldn't describe it in the way Justice Souter did.
Judges apply the law. They apply the holdings of precedent. And
they look at how that fits into the new facts before them.
But you're not creating law. If that was an intent that Justice
Souter was expressing -- and I doubt it -- that's not what judges do.
Judges do what I just described, and that's not, in my mind, acting
for Congress. It is interpreting Congress's intent as expressed in a
statute and applying it to the new situation.
GRASSLEY: Thank you.
I'm done, Mr. Chairman.
LEAHY: Thank you very much, Senator Grassley.