Jon Henke made a post a few days ago, that was maybe a bit short on substance, but nevertheless made his point. Republicans have not done very well in the world of public opinion concerning their criticisms of Judge Sotomayor. While I agree that Judge Sotomayor has said some unfortunate things, the way that some of the comments by Gingrich, Rush, Steele, and others have come across have not helped our case. I made some responses to Henke's post on why I thought that these individuals were being given a microphone. However, what was even worse than the failure of those perceived to be leaders on our side to effectively criticize Judge Sotomayor were the comments made in response to Henke's post. Here, I respond to Henke's call for Republicans to "grow up" in a meaningful and constructive way with how I would go about questioning Judge Sotomayor as a Republican Senator on the Judiciary Committee.
Sen. Bannon: Good morning Judge Sotomayor. Allow me to be one of the first to welcome you and you're lovely family here to the Senate. As you know from your distinguished career, but for the folks watching on CSPAN or Youtube or on the nightly news, we are here today because of the Senate's role under Article II of the Federal Constitution to give advise and consent to the President when he should have the opportunity to appoint a nominee to the Supreme Court. It is one of our many functions as a check on the two other branches of government, the Executive, in the form of the President and the Judiciary, in the form of the Supreme Court.
As is the case with most likely all of the Supreme Court nominees that the Senate gets to question, your credentials are impeccable. So much such that I will only briefly review them to acknowledge to all paying attention that you are most definitely qualified on paper to sit on the Supreme Court. Princeton Undergrad and Harvard law, ultimately culminating in a Judgeship on the 2nd Federal Circuit Court of Appeals and nominated by the President to sit on the highest court in the land. Your achievements stand as accomplishments to be proud of and let us hope that you are placed as a role model for those outstanding achievements in the lives of all of our young.
Judge, there is a lot going on outside right now. The newspapers and other media are paying attention. Right, left, up down, crisscross are all paying attention and have been screaming ever since you were nominated. In fact the entire world is most likely paying attention, but you know what Judge, I want to bore them to death. I want to sit here, just two people, a United States Senator and a United States Judge, and have a scholarly conversation about that great founding document of ours, the Constitution of the United States, only with the realization that the points that are made in our scholarly conversation can indeed be very exciting and have real world effects despite sounding like we are up in the clouds. Do you think we can do that Judge?
Judge Sotomayor: Of course, Senator Bannon.
Sen. Bannon: Good Judge, then lets get right to it and lets get the main thing that has been causing all of that screaming and manuevering out there, and lets get it out of the way and then lets move on to bore everyone. Judge Sotomayor, Do you believe that the Constitution of the United States is colorblind?
Judge Sotomayor will then answer the question but no matter what she answers we should just let it go. Either she will hang herself and say that the Constitution is not colorblind or else we will look like we are badgering her about a petty issue. I say we should move on, because there are a number of other Constitutional questions that I will outline below that are much more important than whether a Judge thinks Latina women are better than White men, because Judge Sotomayor will practically speaking never be able to rule that Latina women are better than White men in any form whatsoever.
Other Questions I would ask Judge Sotomayor: (Note: It is her failure to answer these questions that I would press her on. Here we are treating her as any other normal nominee, questioning her judicial philosophy on things likely to come before the court, not getting in a battle about race with the first Latina woman every nominated to the Supreme Court).
1. Does the dormant commerce clause exist? If so, please explain how you would approach a case dealing with the dormant commerce clause.
2. Can you please discuss your take on Youngstown Sheet and Tube v. Sawyer, specifically addressing Justice Jackson's 3 part concurring opinion?
3. Can you discuss your view of the 10th Amendment's role in the Constitution?
4. Can you please discuss your take on the caselaw leading up the decision in Kelo v. New London? (Notice that I did not ask her view on this case, because she will give the "its an issue likely to come before the court" response. But there would be no reason not to discuss the two important cases that were cited in Kelo).
5. Do you believe that Miranda rights are Constitutional rights?
6. Can you please give us your definition of Pornography? (Tie this into some statement about how more and more children are preyed upon because of online predators, etc.)
7. Could you please give us your opinion of the standards the court must look at in determining whether enough has been met under rule 8(a) of the Federal Rules of Civil Procedure?
8. Can you please discuss the equal protection clause of the 14th Amendment and how you would have applied it if you had been on the bench when Korematsu came to the Court?
9. Ought international law be used in interpreting the Constitution of the United States?
10. Does the Constitution permit the legislature to strip the United States Supreme Court of jurisdiction over an issue?
Note: Most of these questions are not particularly hot buttoned topics and, if they are, they are certainly not framed that way. Secondly, for most of these questions, the standard "non-answer, answer" would not only be unacceptable to the right, but would likely be unacceptable to the left as well. These are the types of questions, for a myriad of reasons, a judicial nominee would have to provide some type of answer to, or else there could be a case made to the majority of the American people that there was a valid reason to vote against her/him.
