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Sotomayor hearings: America says, 'Huh?'

July 14, 2009 |  9:14 am

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)