Questions for Sotomayor


  • Kathleen M. Sullivan
Publish Date:
July 13, 2009
Publication Title:
New York Times, July 13, 2009, pg. A19
Op-Ed or Opinion Piece
  • Kathleen M. Sullivan, Michael Chertoff, Stephen L. Carter, Alberto Gonzales, Ann Althouse, Ronald Dworkin, and James MacGregor Burns, Questions for Sotomayor, New York Times, July 13, 2009, pg. A19.


Judge Sonia Sotomayor, President Obama’s nominee for the Supreme Court, is scheduled to appear today at a confirmation hearing before the Senate Judiciary Committee. The Op-Ed editors asked seven legal experts to pose the questions they would like to hear the nominee answer.

1. Advocacy of “states’ rights” has long been considered a hallmark of conservative judicial philosophy. Recently, however, we have seen the advent of what might be called “blue states’ rights,” as progressive states seek to provide greater consumer, environmental and antidiscrimination protection than the federal government, while business seeks to strike down such measures as pre-empted by federal law.

What is your view of the role of federalism in our constitutional system? And how has that view affected your rulings in the cases that have come before you concerning whether federal laws pre-empt state laws or causes of action?

2. The Supreme Court has issued four major decisions since 9/11 invalidating the president’s and Congress’s efforts to detain and try “enemy combatants” according to procedures that depart from traditions of military justice and the rule of law. And yet since 9/11, not a single enemy combatant has been tried to judgment by military tribunal or released over executive branch objection. How will history view the Supreme Court’s decisions in this area — as a success for the principles they announced or a failure for the results they achieved? What is your view of the role of the court in ensuring the separation of powers? Has that view varied in times of national emergency?

— KATHLEEN M. SULLIVAN, a professor of law at Stanford