Sen. Cornyn's Daily Question for Judge Sotomayor Question 17

Statement

Sen. Cornyn's Daily Question for Judge Sotomayor Question 17

Should constitutional interpretation resemble common law decisionmaking?

Explanation: Judge Sotomayor has written that "the law" is uncertain and in a necessary state of flux. See Hon. Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35, 37 (1996-1997). Judge Sotomayor has noted that "the very nature of our common law is based upon the lack of certainty," and she has suggested that what is true for "the common law" is true for the rest of law. Id.

In my view, Judge Sotomayor's view of "the law" mistakenly assumes that all legal decisionmaking is like common law decisionmaking. It is not. As lawyers know, the common law refers to judge-made law that the colonists inherited from England in a period before a written Constitution. Common law judging requires judges to make the law because the judiciary is the only legal institution involved.

The work of our federal courts is very different. As the Supreme Court stated back in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938), "[t]here is no federal general common law." The role of federal courts and the Supreme Court primarily involves interpreting written text such as statutes and the Constitution. The role of courts is much narrower in our system because the judges are not tasked with the job of making the law. As a result, the proper work of a federal judge is very different from a common law judge. While a common law judge can make the law, a federal judge can only interpret the law enacted by the elected branches.

At her hearings next week, I hope Judge Sotomayor can explain her vision of judging. I hope she will explain the difference between common law judging and interpreting a written constitution, and the much narrower role of judges that the latter requires.

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