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Sotomayor hearings: On religious freedom and choosing Supreme Court cases

July 15, 2009 |  3:28 pm

Judge Sonia Sotomayor had to dash the hopes of Democratic Sen. Benjamin Cardin of Maryland, who asked her how she would decide what sort of cases the Supreme Court should take up: “One of the standards I would hope you would use,” said Cardin, “is deciding this case for the impact it has on the broader nation.”

Sorry, Senator.

“As I indicated earlier,” said the nominee, “we don’t make policy choices. That means that I would think it inappropriate for a court to choose a case, or for a judge to chose a case, based on some sense of ‘I want this result on society.’ A judge takes a case to decide a legal issue....”

Cardin, still in the extolling mode adopted by Sotomayor’s Democratic fans on the Judiciary Committee, lauded her decision in a federal appeals court case. She had written the opinion upholding the religious rights of a Muslim inmate, who had been denied access to his meals marking the end of Ramadan.

“Freedom of religion truly is an American right,” Cardin said. “Please share with us the importance of that provision in the Constitution and how you would go about dealing with cases that could affect that fundamental right.”

Now here is where we got lost, probably because we are spending half our time writing and half our time listening. Did we miss something?

“I don’t mean to be funny,” said Sotomayor, smiling, “but the court has held that it’s fundamental in the sense of incorporation against the state.”

Lots of lawyers seemed to be chuckling, but we felt the whoosh of air over our heads.

She couldn’t elaborate too much, she said, but the main issue in that case was whether the court erred “in considering whether or not the religious beliefs that this prisoner had was consistent with the established traditional interpretation of the meal at issue, OK? What I was doing was applying the very important Supreme Court precedent that said, it’s the subjective belief of the individual.... We are not asking the court to say whether this is orthodox, but look at the sincerity of the individual’s belief.”

Tomorrow: More grilling by senators. We’re looking forward to watching Sotomayor’s next exchange with the irascible Lindsay Graham, Republican of South Carolina.

--Robin Abcarian

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