Wednesday, July 15, 2009

Sotomayor Hearing Day Two: Interesting exchange Between Durbin and Sotomayor on "Judicial Activism"

from the hearings

Senator Richard J. Durbin: "Now, the Supreme Court in the Osborne case was asked, what about those three states? Is there a federal right to access to DNA evidence for someone currently incarcerated who questions whether or not they were properly charged and convicted? And the court said, no, there was no federal right, but it was a 5-4 case. So, though I don't quarrel with your premise that it's our responsibility on this side of the table to look at the death penalty, the fact is, in this recent case, this Osborne case, there was a clear opportunity for the Supreme Court right across the street to say, "We think this gets to an issue of due process as to whether someone sitting on death row in Alaska, Massachusetts or Oklahoma, where their state law gives them no access, under the law, to DNA evidence."

So I ask you, either from the issue of DNA or from other perspectives, isn't it clear that the Supreme Court does have some authority in the due process realm to make decisions relating to the arbitrariness of the death penalty?"

Sotomayor: "The court is not a legislative body. It is a reviewing body of whether a particular act by a state in a particular case is constitutional or not. In a particular situation, the Court may conclude that the state has acted unconstitutionally and invalidate the act, but it's difficult to answer a question about the role of the Court outside of the functions of the Court which is we don't make broad policies. We decide questions based on cases and the principles implicated by that particular case before you."

Um. what should those of us from the liberal end of the judicial spectrum think of these remarks? Was she channeling Justice Scalia? or was she rejecting Durbin's suggestion on narrower grounds (perhaps the 14th amendment question was not addressed in the lower courts in this hypothetical case)

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