Opinion: Sotomayor hearings: Wiggle room on question of precedent

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Sonia Sotomayor pledged allegiance to judicial precedent but also left a door open, just slightly, heading into new legal territory.

It happened as she was being questioned by Sen. Herb Kohl, a Wisconsin Democrat. The judge said that if she were a Supreme Court justice, she would adhere to previous rulings if the issue in question had been previously brought to the high court.

But then Kohl pointed out that Supreme Court justices “have the authority to depart from precedent” and asked Sotomayor to tell him how she would decide when it is appropriate to do so.

“Changing it should be done cautiously,” she said. But, she agreed, “precedent can’t stand if other things counsel that it should not.”

Sotomayor said she would ask a series of questions when weighing whether to change a precedent. She said she would look to see whether the facts that the court assumed in earlier precedents had changed; she also would question whether the precedents are providing enough guidance to the courts below.

-- Kate Linthicum

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