Judge Sonia Sotomayor’s answers to the Senate Judiciary Committee in today’s hearing revealed a curious contradiction.
First, the nominee refused to tell Oklahoma Republican Sen. Tom Coburn whether advances in technology — such as the fact that the life of a child born at 21 weeks may now be saved – should be taken into account when evaluating Roe v. Wade. But later, under questioning from Sen. Ted Kaufman (D-Del.) on antitrust laws, she gave quite a different answer when discussing stare decisis, the legal principle under which judges are obligated to follow courts’ precedents.
Sotomayor told Kaufman that one element that should be considered in stare decisis is, “Has there been a change in society that shows that the factual findings” of the previous rule may have been wrong? She added, “The court has recognized in its stare decisis jurisprudence that all of the factors weigh into the decision.”
As I wrote when liveblogging this exchange, apparently, when the subject is antitrust law, Sotomayor is perfectly comfortable with admitting that new information must be taken into account. But when the subject is abortion law, she doesn’t want to even discuss whether a change in “factual findings” is relevant.
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