Slowly but surely, Supreme Court nominee Sonia Sotomayor is trying today to undermine the argument Republican senators made yesterday: namely, that once she becomes a justice, she'll be unbound by the shackles of precedent that she has to live with now as an appeals court judge.
Sen. Herb Kohl (D-Wisc.) asked her about the controversial 2005 decision in Kelo v. City of New London, which ruled that cities may take private homes in eminent domain for private development. "Kelo is now a precedent of the Court," she said. "I must follow it" as a judge on the 2nd Circuit. But if she becomes a justice on the Supreme Court, she continued, "I must give it the deference that the doctrine of stare decisis would suggest." A slightly different standard on the Supreme Court, in other words, but not one that forecasts a Justice Sotomayor upsetting precedents left and right.
Later, in a dialogue with Sen. Dianne Feinstein (D-Calif.), Sotomayor elaborated on when she'd feel it appropriate to overturn a precedent as a Supreme Court justice. She said she would start from the premise that stare decisis is important. "There is a value ... in predictability, stability" of the law for all society, she said. Before dispensing with a precedent, she said justices should be "guided by the humility they should show, and the thinking of prior judges." She added, "There are circumstances in which a court should re-examine precedent, but it should be done very very cautiously." Also: "It's important to recognize that the development of the law is step by step, case by case."
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