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Sotomayor hearings: Orrin Hatch wants to know if it's OK to bend the Constitution

July 15, 2009 |  2:19 pm


Sen. Orrin Hatch (R-Utah) queried Judge Sonia Sotomayor about her judicial philosophy as well as the role and power of a judge in the American system of government.

Sotomayor had said Monday in her opening statement that her judicial philosophy could easily be summed in four words: “fidelity to the law.” Good shorthand, he said, but not enough.

He wanted to know whether she thinks that judges can “read new rights into the Constitution.”

“The Constitution creates the rights, it’s immutable,” said Sotomayor.

During her 1998 Senate hearing when she was confirmed for the federal bench, said Hatch, “You said, ‘I don’t believe we should bend the Constitution under any circumstances. It says what it says.’ Maybe you could describe some ways the court could bend the Constitution?”

Replied Sotomayor: “I said you can’t. The words are the words. The court can’t be looking to ignore the words or to change them. What it does is apply those words to each situation. I stand by that answer today as I did then.”

“Would you agree the Supreme Court bends the Constitution when it does read rights into the Constitution?” Hatch asked.

Hard to know what Hatch was driving at, exactly, other than an oblique reference to the fact that the Supreme Court has found, for instance, a right to privacy in the Constitution — as in its landmark Roe vs.  Wade decision — though the document does not contain that word.

“Courts can’t change the meaning of the Constitution,” Sotomayor said. “They can apply those words to the facts before them, to see if the facts are within the protection of the Constitutional right at issue.”

Hatch turned to a speech Sotomayor gave in 2006 at the University of Puerto Rico Law School, where she made a distinction between what district courts and circuit — or appellate — courts do.

“You said … ‘the difference between district court judges and circuit court judges is that district court judges do justice for the party, while circuit court judges do justice for society as a whole.’ This is important in light of your comment that the court of appeals is where policy is made. What do Supreme Court justices do justice for?”

She didn’t directly answer the last part of his question, about the Supreme Court, but she did say that “the district court is looking at two parties; the circuit court is looking at the law, and a holding about the law that will affect many people.”

--Robin Abcarian

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Photo: Sen. Jeff Sessions, right, confers with Sen. Orrin Hatch. Credit: Mark Wilson / Getty Images.