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Key Excerpt: Whitehouse and Sotomayor on Separation of Powers

Courtesy of CQ Transcriptions

SEN. WHITEHOUSE: I'd love to hear your thoughts on the importance of the jury in that American system of government and, if you could, with particular reference to the concerns of the founders about the vulnerabilities of the elected branches.

JUDGE SOTOMAYOR: Like you, I am -- and perhaps because I was a state prosecutor and I have been a trial judge, and so I've had very extensive experience with jury trials in the American criminal law context. I have had less in the civil law context as a private practitioner, but much more as a district court judge.

I can understand why our founding fathers believed in the system of juries. I have found in my experience with juries that virtually every juror I have ever dealt with, after having experienced the process, came away heartened, more deeply committed to the fundamental importance of their role as citizens in that process.

Every juror I ever dealt with showed great attention to what was going on, took their responsibilities very seriously.


I had a juror who was in the middle of deliberations on her way to my courtroom -- not on her way to my courtroom -- on her way home from court on the previous day, broke her leg, was in the hospital the entire night, came back the next morning on time, in a wheelchair, with a cast that went up to her hip.

What a testament both to that woman and to the importance of jury service to our citizens. I was very active in ensuring that her service was recognized by our court.

It has a central role. Its importance to remember is that it hasn't been fully incorporated against the states. Many states limit jury trials in different ways.

And so the question of in -- what cases require a jury trial and what don't is still somewhat within the discretion of states. But it is a very important part of a sense of protection for defendants accused in criminal cases, and one that I personally value from my experience with it.

WHITEHOUSE: And does -- do -- does the Founder's concern about the potential vulnerabilities, or liabilities, about the elected branch illuminate the importance of the jury system?

SOTOMAYOR: Senator, I -- as I see the jury system, I don't know exactly -- I don't actually -- and I've read the federal or state person. I've read other historical accounts.

The jury system was -- I thought the basic premise of it was to ensure that a person subject to criminal liability would have a group of his or her peers pass judgment on whether that individual had violated the law or not. To the extent that the Constitution looked to the courts to determine whether a particular act was or was not constitutional, it seems to me that that was a different function than what the jury was intended to serve. The jury, as I understood it, was to ensure that a person's guilt or innocence was determined by a group of peers.

To the extent that that has a limit on the elective branches, it's to ensure that someone is prosecuted under the law and that the law is applied to them in the way that the law is written and intended.

WHITEHOUSE: And where the jury requirement applies to civil trials, the argument would be the same, correct?

SOTOMAYOR: Yes.

WHITEHOUSE: Again on the question of the American system of government, how would you characterize the Founder's view of any exercises of unilateral or unchecked power by any of the three branches of government in the overall scheme?

SOTOMAYOR: The Constitution, by its terms, sets forth the powers and limits of each branch of government. And so, to the extent that there are limits recognized in the Constitution, that is clearly what the Constitution intends. The Bill of Rights, the Amendments, set forth there are often viewed as limits on government action. And so it's a question always of looking at what the Constitution says and how -- what kind of scope it gives for a government action at issue.


Read the entire exchange between Sen. Whitehouse and Judge Sotomayor here.

By Washington Post editors  |  July 15, 2009; 11:34 AM ET
Categories:  Hearings , Supreme Court , Topics: Separation of Powers  
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