Let’s be candid: We had some pretty poor questioning by the senators — on both sides. Orin Hatch was unintelligible on the Second Amendment. The Democrats are fawning.
But a non-lawyer, Tom Coburn, posed a series of concise and interesting questions on abortion and the Second Amendment. Can a 38-week unborn child with a birth defect be aborted? (Sotomayor hedges and wants to know the state law. Hmm. I think the U.S. Supreme Court has pretty much taken that option away.) If a fetus is viable at 21 weeks shouldn’t abortion law change? She doesn’t think it will “come up” like that. (Sure it will.) On the Second Amendment, why is a right like “privacy,” which isn’t spelled out specifically in the Constitution, “fundamental” but there is a question on the Second Amendment? (He even has some post-Civil War history.) I remain completely unimpressed by Sotomayor’s intellectual and legal reasoning (but to be fair, she has been told to say nothing). Coburn on the other hand, if he wants to leave the senate and the practice of medicine, seems like he’d be a fine judge.
UPDATE: Here is more on Sotomayor’s misstatement/misunderstanding on the role of state law regarding late term abortions.
UPDATE: Sotomayor says she has never used foreign law to determine the outcome of a case and she wouldn’t in the future. Foreign law should not “influence the outcome” but she and other judges would look at foreign law to educate themselves or “point something out.” Huh? But why? Isn’t a judge supposed to educate herself about the relevant texts? The Bible and novels have interesting ideas but are we to start citing those in decisions?