WASHINGTON Pressed for her views on one of the nation's most controversial subjects, Supreme Court nominee Sonia Sotomayor said July 16 that she understands the "seriousness" of the nationwide debate over the definition of marriage, although she didn't disclose where she stands.
Sotomayor was asked about "gay marriage" and an obscure 1972 Supreme Court case pertaining to that issue as the Senate Judiciary Committee concluded its final day of questioning, with each senator getting 10 minutes in a "third round" to probe Sotomayor. Although the panel's social conservatives had focused on abortion during the first two days of questioning, they increasingly turned to the issue of marriage during the final day and a half of the confirmation hearing.
Liberal groups are counting on Sotomayor to provide a Supreme Court vote for "gay marriage," but no one knows for sure what she believes. She has not ruled on the issue as a judge on the U.S. Second Circuit Court of Appeals.
"If the Supreme Court in the next few years holds that there's a constitutional right to same-sex marriage, would that be making the law or would that be interpreting the law?" Republican Sen. John Cornyn of Texas asked, noting that Sotomayor previously had labeled as interpretations of the law several Supreme Court decisions that conservatives have heavily criticized.
Sotomayor began her response by saying if she answered it directly it would be viewed as pre-judging the case. But she continued, "I understand the seriousness of this question, and I understand the seriousness of same-sex marriage, but I also understand and know as I think all America knows that this issue is being hotly debated on every level of our three branches of government."
She said she has not pre-judged the issue and would not let her own personal views determine the outcome.
"I would look at that issue in the context of the case that came before me with a completely open mind," she said.
The issue of "gay marriage" was first raised when GOP Sen. Charles Grassley (Iowa) asked Sotomayor about Baker v. Nelson, the nation's first "gay marriage" case. It originated in the early 1970s when the Minnesota Supreme Court ruled that two homosexual men did not have a right under the U.S. Constitution to "marry." It was appealed to the U.S. Supreme Court, which dismissed it in 1972 "for want of a substantial federal question." In recent years Baker has been cited as a controlling precedent by several state and federal courts, such as a 2005 opinion by District Judge James S. Moody Jr., who in dismissing a lawsuit against the Defense of Marriage Act said Baker "addressed the same issues presented in this action and this Court is bound to follow the Supreme Court's decision." Moody was nominated by President Clinton.
On July 15, Sotomayor said she did not know enough about Baker to discuss it. After reading about it overnight, Sotomayor acknowledged the next day that she may not have ever read it, "even in law school." The court's opinion was only one sentence.
"What I have learned is that the question of what the meaning of that dismissal is is actually an issue that's being debated in existing litigation," she said. "As I indicated yesterday, I will follow precedent according to the doctrine of stare decises. I can't pre-judge what that precedent means until ... that question is before me as a judge or a justice if that should happen."
Stare decises is a legal doctrine that says a court's own decision should only be overturned if there is a compelling reason to do so.
Several Republican senators quizzed Sotomayor on the role of the judiciary in hot-button cultural issues.
"Do you believe that the court's abortion rulings have ended the national controversy over this issue?" Republican Sen. Tom Coburn (Okla.) asked.
"No," Sotomayor responded.
"Do you think," Coburn asked, "there are other similarly divisive issues that could be decided by the court in the future?"
With Sotomayor pausing to answer and still formulating an answer, Coburn gave two examples: assisted suicide and euthanasia.
"I can only answer what exists," Sotomayor answered. "People are very passionate about the issues they believe in, and so almost any issue could find an audience or part of our population that's fervent about it."
Coburn then asked, "On these divisive issues, is it better that the court decides them or elected representatives? ... If you were king tomorrow and you said, 'We're going to decide this either in the Supreme Court or force Congress to make the decision,' which would you think would be better for us?"
"It's always," Sotomayor answered, "Congress or a state passing regulation that the court is reviewing and determining whether it complies with constitutional limits. It's not a choice of either/or, it's always Congress' first interest or the state legislature's first interest...."
Having only 30 seconds left in his round, Coburn interrupted her to ask another question.
Sotomayor also said she was not contacted by the Puerto Rican Legal Defense and Education Fund of which she was a board member from 1980-92 when it submitted some of its most controversial legal briefs, including one supporting tax-funded abortion. The organization submitted at least six pro-Roe briefs when she was serving.
"Is it fair to say that all of the cases embraced by this group on abortion advocated the woman's right to choose and argued against restrictions by state and federal government on abortion rights?" GOP Sen. Lindsey Graham (S.C.) asked.
"I can't answer that question because I didn't review the briefs," she responded. "I did know that the fund had a health care docket that included challenges to certain limitations on a woman's right to terminate her pregnancy under certain circumstances."
Graham said "every case" he had seen by the fund argued against restricting abortion, against the death penalty or took the liberal position.
"That's just the record of this organization," he said. "... You have, I think consistently as an advocate, [taken] a point of view that was left of center. You have as a judge been generally in the mainstream. [On] the Ricci case, you missed one of the biggest issues in the country or you took a pass."
In Ricci v. DeStefano case, a group of white and Hispanic firefighters sued New Haven, Conn., after the city tossed out a promotional test on which the firefighters had scored high. No black firefighter scored high enough to be promoted. Sotomayor and her Second Circuit colleagues had sided with the city; the Supreme Court overruled the Second Circuit and sided with the firefighters.