Dear Orin...I Mean, Sen. Cornyn

Senator John Cornyn of Texas has very generously collected all of his daily questions for Judge Sotomayor on his web site in one place.  Some of them are quite good, some not so good.  Many of them are questions in the same way that "questions" at faculty workshops and public appearances (watch C-SPAN's book channel some time) are questions, which is to say, they consist of a number of controvertible premises and an over-simplification of the opponent's position, and then tail off into, "So, um, tell me what you think about all that."  That doesn't mean they don't raise valuable questions, although it does tend to discourage candid and humble discussion of those questions.  Still, I thought I'd take a shot at answering a few of them, in part.

1) What is the proper role of foreign and international law in interpreting the United States Constitution?  Sen. Cornyn states the standard position against the use of foreign and international law here, and then criticizes Sotomayor for having said that ideas have no boundaries and judges should not close their eyes and ears to foreign sources.  Answer: First, the question of the use of foreign law is quite different from the question of the use of international law, given the status of at least some forms of international law under Article VI of the Constitution.  Perhaps Sen. Cornyn made a simple mistake here, but perhaps he thought using the phrase "international law" would have some rhetorical weight with some voters.  In any event, there is a difference between saying that judges should not cite foreign law as authoritative and saying that they are obliged to pretend it doesn't exist.  The difference is that there are reasonable arguments for the former (arguments with which I disagree), and no reasonable arguments for the latter.

7) How can a judge objectively interpret the law if she believes there are multiple realities and multiple versions of the truth?  This is a perfectly valid question.  But it would have been more valid if Sen. Cornyn had asked the question he meant to ask here, which is, how can a judge objectively interpret the law if she believes there are multiple perspectives on the truth?  That is not the same thing, of course, as saying that there is no single version of the truth; only that are approach to it will generally be perspectival.  I think the appropriate answer here is: Assuming we both agree that there can be such a thing as objective truth, would you care to offer me a convincing proof that it is objectively knowable and that perspectives on it are irrelevant?  

15) Is the Constitution color-blind?  Here, Sen. Cornyn picks up on the famous language of Justice Harlan in his Plessy dissent, and adds that he questions Sotomayor's views on this question because, one, she apparently argued that there may be physiological differences among people of different races and ethnicities, and, two, she has argued that there may be an inherent tension between color-blindness and ethnic diversity.  Again, I think this is a perfectly valid question.  But it might have been stronger if it had noted what everyone else has noticed, that Harlan's opinion in fact contains two different strains of discussion on Equal Protection, and the other strain suggests that that Clause embodies an anti-caste philosophy.  It might also have been stronger if Cornyn had admitted that whether the the Constitution is color-blind has nothing to do with whether there are differences between the races or with whether there is a tension between color-blindness and ethnic diversity.  The former is a legal question; the latter are scientific and social-scientific questions respectively.  If Cornyn thinks one's views on the latter should influence one's views on the former, one may rightly question his understanding of the rule of law.  Finally, Cornyn might be asked, given his earlier question about original public meaning, whether race-conscious laws enacted by the Reconstruction Congress should be more relevant as interpretive guides here than what Justice Harlan had to say about the Equal Protection Clause decades later.

And, out of order, 14) Has the Supreme Court made any missteps in the last fifty years that might justify public skepticism about lawyers and the courts?  On this, Sen. Cornyn adds that surely some of the public skepticism is justified.  I think Sotomayor should hope he asks this question, and wait for a moment to sweetly point out that this is not the first time he has spoken to these issues.

Let me be clear that these are fair questions to ask, although most of them are not so much larger questions as ways of saying Cornyn disagrees with particular decisions, a fact that should be unexceptional with respect to any judge who has a reasonably long record of decisions.  And they are fair to ask even if some of Cornyn's premises are either wrong are reasonably debatable, although it would help if he recognized that more explicitly.