Key Excerpt: Kyl and Sotomayor on Second Amendment Rights
KYL: Judge, could I return briefly to a series of questions that Senator Feingold asked at the very beginning relating to the Maloney decision relating to the Second Amendment.
You had indicated, of course, if that case were to come before the court, under the recusal statute, you would recuse yourself from participating in the decision.
SOTOMAYOR: In that case, yes.
KYL: Yes. And you're aware -- or maybe you're not -- but There are two other decisions both dealing with the same issue of incorporation, one in the Ninth Circuit, one in the Seventh Circuit. The Seventh Circuit decided the case similarly to your circuit; the Ninth Circuit has decided it differently, although that case is on rehearing.
If the court should take all three -- let's assume the Ninth Circuit stays with its decision, so you do have the conflict among the circuits, and the court were to take all three decisions at the same time, I take it the recusal issue would be the same. You would recuse yourself in that situation?
SOTOMAYOR: I haven't actually been responding to that question, and I think you're right for posing it. I clearly understand that recusing myself from Maloney would be appropriate. The impact of a joint hearing by the court would suggest that I would have to apply the same principle.
But as I indicated, issues of recusal are left to the discretion of justices because their participation in cases is so important. It is something that I would discuss with my colleagues and follow their practices...
SOTOMAYOR: ... with respect to a question like this.
KYL: I -- I appreciate that. And I -- I agree with your reading of it. The law, 28 USC Section 455, provides, among other things, and I quote, "Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," end of quote.
And that, of course, raises the judge's desire to consult with others and ensure that impartiality is not questioned by participating in a decision. I would -- I would think -- and I would -- I would want your responses -- I would think that there would be no difference if the Maloney case is decided on its own or if it is decided as one of two or three other cases all considered by the court at the same time.
SOTOMAYOR: As I said, that's an issue that's different than the question that was posed earlier.
KYL: Would you not be willing to make an unequivocal commitment on that at this time?
SOTOMAYOR: It's impossible to say. I will recuse myself on any case involving Maloney. How the other cert is granted, and whether joint argument is presented or not, I would have to await to see what happens.
July 14, 2009; 3:45 PM ET
Categories: Hearings , Supreme Court , Topic: Second Amendment Rights
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