Bench Memos

Sotomayor Hearing — Feinstein’s Round 1

Feinstein:  [Several questions setting contrary view on Ricci]  Asks confusing question about precedents on “health” exception from abortion regulations.

SS:  In Carhart [which one?], Court didn’t reject prior precedents. 

DF:  Does health of woman still exist?  [Garbled question]

SS:  Part of precedent.

DF:  In two cases in 2006, Justice Scalia sharply criticized colleagues for overruling precedent w/o acknowledging that they were doing so.  When the Court decides to overrule a previous decision, is it important that it does so outright?  [DF seems not to know that the Court didn’t do so in Brown v. Board of Education.]

SS:  Re-examination of precedent should be very, very cautious.  Courts look to variety of factors, applying each in a balance.  Development of law is step by step.  [Not responsive]

DF:  On executive power and national security:  President Bush used signing statements to indicate sections of bills that he would disregard.  Does Constitution authorize President not to follow parts of laws that he believes are unconstitutional? 

SS:  Broad question.  Cites Jackson’s concurrence in Youngstown case. 

DF:  How should courts balance executive branch’s expertise with judiciary’s obligation to enforce Constitution?  Discusses Doe v. Mukasey on national security letters.

SS:  Discusses Doe v. Mukasey.

DF:  Do you agree with the Court’s narrowing of Congress’s Commerce Clause power?

SS:  You’re asking me to prejudge an issue, so I can’t answer in a broad statement.  Court has looked to wide variety of factors.

DF:  How about Lopez case on gun-free zone?

SS:  Court examined a wide variety of factors.  In Raich, Court did upheld criminal prohibition of non-economic crime.

DF:  Restriction of commerce-clause power could affect environmental legislation.