One of the recurring themes from Republican senators thus far this morning is that no matter how moderate or even-handed her record as a district and appeals judge has been, Supreme Court nominee Sonia Sotomayor will likely turn out to be an unabashed liberal once she joins the high court and is untethered by the precedents she must follow as an appeals court judge.
"What will you do when it comes to making policy?" asked Sen. Lindsey Graham (R-S.C.) after recognizing and then dismissing her record. Sen. Jon Kyl (R-Ariz.), also said when she becomes a justice, there will be "no such restraint" keeping her from following her heartfelt views instead of precedent.
This is an interesting argument that is likely to trigger new discussion of the role of precedent in Supreme Court decision-making. Republican senators seem to be arguing that a) lower court judges are total slaves to precedent who can make no independent judgments, and b) that Supreme Court justices can throw off the shackles of following precedent the moment they join the high court. Both propositions can be disputed, but most especially the second.
Though fealty to precedent can be an on-and-off thing, Supreme Court justices pay considerable attention to precedent, and don't usually feel they can write on a clean slate to correct errors or, as the Republicans suggest, to implement a personal agenda. Examples abound from across the spectrum of decisions in which justices follow precedent in spite of their own personal views. It will be interesting to see how Senate Democrats, and Sotomayor herself, address this argument.
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