Supreme Court nominee Sonia Sotomayor has dealt with few cases related to national security as a judge on the U.S. Court of Appeals for the 2nd Circuit. And, under questioning today, she gave little hint how she would rule in such cases.
"I haven't had a sufficient number of cases in this area to say," Sotomayor said in response to one question during the second day of her confirmation hearing before the Senate Judiciary Committee. "Each situation would have to be looked at" on an individual basis, she added, and there would be little point in having an "academic discussion" about potential cases.
Sen. Russ Feingold (D-Wis.) tried in several ways — largely without success — to get a sense of Sotomayor's thinking on issues such as interrogation techniques, government surveillance, and the secrecy regarding anti-terrorism programs.
Feingold asked Sotomayor whether she found it "odd" that Justice Department memos regarding torture did not mention the seminal 1952 Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer, regarding the limits of executive power.
"I have never been an adviser to a president," Sotomayor replied. "That's not a function I have served, so I don't want to comment on what has been done or not done."
In response to another question about the secrecy of memos from the Justice Department's Office of Legal Counsel, Sotomayor said it was "difficult to speak from the abstract" about whether such memos should be kept confidential. "One has to think about what explanations the government has. There are so many issues a court would have to look at," she said.
Sotomayor did say that the Supreme Court ruled incorrectly in Korematsu v. United States, in which the Court upheld the internment of Japanese-Americans during World War II. "A judge should never rule from fear. A judge should rule from law and the Constitution," she said.