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Sotomayor hearings: America says, 'Huh?'

Sotomayor6 Most of America may have just lost their easy access point to the Sonia Sotomayor confirmation hearings as Sen. Orrin Hatch of Utah and the nominee engaged in a tangled discussion of the value of precedent and standards for constitutional jurisprudence.

Hatch, in pressing Sotomayor for her rulings involving gun rights and the 2nd Amendment, shows that Sotomayor's Republican critics, in a sense, are trying to have it both ways.

They want to condemn the judge as a judicial activist who disregards precedent when it suits her. But Hatch blasted Sotomayor for following what he deemed to be incorrect precedent in deciding whether the 2nd Amendment right to gun ownership was applicable to the states.

Specifically, Hatch accused Sotomayor of using an incorrect analysis (and, by implication, suggesting she willfully used a certain line of cases to achieve a desired result) under the 14th Amendment to the Constitution.

At one point, when Sotomayor suggested that she was bound by the precedent of her judicial circuit, Hatch interjected, "I'm talking about what should be done here."

Much of the debate concerned what can be considered a "fundamental" right under the Constitution. Once a right is deemed fundamental, in a legal sense, any government regulation that restricts that right is subject to strict scrutiny by a court.

Absent that designation, government regulations typically are viewed as reasonable and survive judicial review. In Heller vs. District of Columbia, decided last year, a majority of the court declared gun ownership a fundamental and "natural" right.

Hatch seemed to be arguing that Sotomayor, in the Maloney vs. Cuomo case, decided after Heller, should have found that that gun ownership is a fundamental right and struck down the state regulation at issue. Sotomayor argued, however, as she had earlier, that the question of incorporation -- whether that right extended to the states -- was one that still must be decided by the Supreme Court, likely next term. Democrats would argue that, for Sotomayor to have gone that way, she would have been the kind of activist that Republicans accuse her of being. Republicans claim her failure to do so shows her hostility to gun rights.

In any event, many Americans were likely left in the dark by much of the exchange. But view the back and forth as a bit of a marker. Republicans know that Sotomayor will likely be on the court when the incorporation issue is decided, and they are warning her to follow what they consider to be the correct judicial path. Some gun-rights groups, in fact, intend to use the final vote on Sotomayor as a symbolic test of whether senators support a broad reading of the 2nd Amendment.

-- James Oliphant

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Supreme Court nominee Judge Sonia Sotomayor answers questions from Senate Judiciary Committee member Sen. Herb Kohl (D-WI) during the second day of her confirmation hearings July 14, 2009 in Washington, DC. (Photo by Mario Tama/Getty Images)

 
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I'm not able to watch the hearings, but perhaps Senator Hatch is echoing what some commentators have pointed out, which is that Heller mandates that lower courts engage in the incorporation analysis under the 14th Amendment due process clause? (even though Heller didn't decide the incorporation question because the case involved the District of Columbia, which is not a state). I can't say whether it's reasonable to read Heller in this way, but some commentators have.

Orrin Hatch is a moron who just said that Judges should decide based on "what should be done" rather than existing law and precedent. So now one of the main arguments the Republicans use, that she wants to make law rather than precedent, is dead as they have shown that they to want the same thing. Orrin Hatch is a racist and a sexist. He should be censored and has shown his stupidity with his crusade against the BCS because Utah wasn't a national champion. Orrin Hatch is truly the biggest loser.

The largest and the most liberal court of appeals in the land, the 9th Circuit Court of Appeals did, in fact incorporate the 2nd amendment against the states , but Sotomayor, even after the Heller vs DC case in which the SCOTUS found that the 2nd Amendment was a right that belongs to all Americans, ruled against incorporation.

In other words, Sotomayor ruled. post Heller. that this fundamental individual right belongs to all Americans, as long as they live in Washington DC.


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About the Columnist
A veteran foreign and national correspondent, Andrew Malcolm has served on the L.A. Times Editorial Board and was a Pulitzer finalist in 2004. He is the author of 10 nonfiction books and father of four. Read more.
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