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Key Excerpt: Grassley and Sotomayor on "Vacuums in the Law"

Courtesy of CQ Transcriptions

SEN. GRASSLEY: My last question for your appearance before your committee involves a word I don't think that's showed up here yet -- vacuums. And it's a question that I asked Judge Roberts and Justice Alito. And it comes from a conversation I had -- a dialogue I had at a December hearing when Judge Souter was before us, now Justice Souter, involving the term "vacuums in law."

And I think the term "vacuums in law" comes from Souter himself as I'll read to you in just a moment. I probed Judge Souter about how he would interpret the Constitution and statutory law. In his response, Justice Souter talked about the court filling vacuums left by Congress. And there's several quotes that I can give you from 19 -- I guess it was 1990. But I will just read four or five lines of Judge Souter speaking to this committee.

Because if, in fact, the Congress will face the responsibility that goes with the 14th Amendment powers, then by definition, there, to that extent, not going to be a kind of vacuum of responsibility created in which the courts are going to be forced to take on problems which sometimes in the first instance might be better addressed by the political branches of government.

Both prior to that and after that, Judge Souter talked a lot about maybe the courts needed to fill vacuums. Do you agree with Justice Souter? Is it appropriate for the courts to fill vacuums in the law?

And let me quickly follow it up. Do you expect that you will fill in vacuums in the law left by Congress if you're confirmed to be an associate justice?

JUDGE SOTOMAYOR: Senator Grassley, one of the things I say to my students when I'm teaching, brief writing, I start by saying to them, it's very dangerous to use analogies, because they're always imperfect. I wouldn't ever use Justice Souter's words, because they are his words, not mine.

I try always to use -- and this is what I tell my students to do -- is use simple words. Explain what you're doing without analogy. Just tell them what you're doing. And what I do is not described in the way -- or I wouldn't describe it in the way Justice Souter did.

Judges apply the law. They apply the holdings of precedent. And they look at how that fits into the new facts before them.

But you're not creating law. If that was an intent that Justice Souter was expressing -- and I doubt it -- that's not what judges do. Judges do what I just described, and that's not, in my mind, acting for Congress. It is interpreting Congress's intent as expressed in a statute and applying it to the new situation.

GRASSLEY: Thank you.

Read the full exchange between Sen. Grassley and Judge Sotomayor here.

By Washington Post editors  |  July 16, 2009; 1:08 PM ET
Categories:  Hearings , Supreme Court , Topics: "Vacuums in the Law'  
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