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Key Excerpt: Cornyn and Sotomayor on Same-Sex Marriage

Courtesy of CQ Transcriptions

SEN. CORNYN: I want to pivot to a slightly different subject and go back to your statement that the courts should not make law. You've also said that the Supreme Court decisions that a lot of us believe made law actually were an interpretation of the law.

So I'm -- I would like for you to clarify that. If the Supreme Court in the next few years holds that there is a constitutional right to same-sex marriage, would that be making the law? Or would that be interpreting the law? I'm not asking you to classify -- excuse me. I'm not asking you to prejudge that case or the merits of the arguments, but just to characterize whether that would be interpreting the law or whether that would be making the law.

JUDGE SOTOMAYOR: Senator, that question is so embedded with its answer, isn't it? Meaning if the court rules one way and I say that's making law, then it forecasts that I have a particular view of whatever arguments may be made on this issue, suggesting that it's interpreting the Constitution. I understand the seriousness of this question. I understand the seriousness of same-sex marriage.

But I also know, as I think all America knows, that this issue is being hotly debated on every level of our three branches of government. It's being debated in Congress. And Congress has passed an act relating to same-sex marriage. It's being debated in various courts on the state level. Certain higher courts have made rulings.

This is the type of situation where even the characterizing of whatever the court may do as one way or another suggests that I have both prejudged an issue and that I come to that issue with my own personal views suggesting an outcome. And neither is true. I would look at that issue in the context of the case that came before me with a completely open mind.

CORNYN: Forget the same-sex marriage hypothetical. Is there a difference, in your mind, between making the law and interpreting the law? Or is this a distinction without a difference?

SOTOMAYOR: Oh, no. It's a very important distinction. Laws are written by Congress. If has -- it makes factual findings. In determines, in its judgment, what the fit is between the law it's passing and the remedy. It's -- that its giving as a right.

The courts, when they're interpreting, always have to start with what does the Constitution say, what is the words of the Constitution, how has precedent interpreting those, what are the principles that it has discussed govern a particular situation.

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

By Washington Post editors  |  July 16, 2009; 11:15 AM ET
Categories:  Hearings , Supreme Court , Topics: Same-sex Marriage  
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