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Key Excerpt: Coburn and Sotomayor on Fundamental Rights

Courtesy of CQ Transcriptions

SEN. COBURN: Thank you. I want to go back to a couple of other areas that we talked about. One is -- is some answers to questions that you gave to -- questions from Senator Hatch.

Senator Hatch asked you to describe your understanding of the test or standard that the Supreme Court uses to determine whether a right should be considered fundamental. Specifically, he noted that, when determining whether a right is fundamental, the Supreme Court determined whether the right is deeply rooted in our nation's history and tradition, that it is necessary to an Anglo-American regime of ordered liberty, or that it is an enduring American tradition.

You refused to answer him, asserting that you responded that you haven't examined that framework in a while to know if that language is precise or not. "I'm not suggesting it's not," you said, "Senator. I just can't affirm that description."

Similarly, you refused to describe to me the test the court used to determine whether a right is a fundamental right.

But in contrast to that, when Senator Kaufman asked you to give a very detailed description of the factor the courts consider when determining the doctrines of stare decisis, you stated and went through a long litany of the items with which the court uses with which to determine stare decisis. And you gave a fairly detailed analysis of that process and the doctrine of stare decisis.

And so I ask you again: Why can't you give us your description of what you think the parameters are that the court uses to determine a fundamental right, in light of the 14th Amendment, incorporation right?

JUDGE SOTOMAYOR: All right. That language has been used in certain cases respecting the question of the incorporation of certain amendments. The question of -- and the general framework will be used with respect to any consideration of -- of incorporation.

That wasn't, I thought, the question that was being asked of me. I don't remember that being the specific question. All I'm saying to you is that the framework has been discussed by the court. In jurisprudence, it's developed over the last hundred years, subsequent to its established precedents on the Second Circuit. One of the questions that the court will address, if it decides to address the incorporation of the Second Amendment, is whether, in those related areas, it will use or not use the doctrines or framework of that precedent. There may be arguments on one side why, on another side why not. What I'm trying to do is not prejudge an issue...

COBURN: Well, I'm not...

SOTOMAYOR: ... that is still pending before the court.

COBURN: ... asking you to prejudge the issue. I'm asking you under what basis -- what is the -- what are the steps and the considerations, not the details of the case -- but, in other words, you can describe that for us in terms of stare decisis, but you can't describe that for us in terms of a fundamental right.

And to me, that's concerning, because we should understand -- and that should be transparent to the people in this country, how that works.

SOTOMAYOR: Because that's the very issue the court's going to look at. The question of stare decisis is a general framework that one uses not in a particular context of a case I'm going to choose always to look at the outcome of the case in this way. It's...

COBURN: Your Honor, I understand that. If I can't get you to go there, I want to quit and go on to something else, if I can.

Continue reading the exchange between Sen. Coburn and Sen. Sotomayor here.

By Washington Post editors  |  July 16, 2009; 12:00 PM ET
Categories:  Hearings , Supreme Court , Topics: Fundamental Rights  
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