Since the nomination of Judge Sonia Sotomayor to the Supreme Court, Republicans have been wondering how to challenge her without it backfiring on them. Hadley Arkes proposes a novel solution : Let Sotomayor talk—and get on the record what the Democrats don’t want explained about the law:

There is no need to ask Judge Sotomayor how she would rule in any of these cases. She could simply display her learning by explaining the state of the law as she understands it , and reveal in that way the furnishings of her mind. For example, Iowa’s supreme court recently invoked the concept of “equal protection of the laws” to strike down the traditional laws concerning marriage. Ted Olson, solicitor general in the first George W. Bush administration, has invoked the same concept in support of a right to same-sex marriage, without exactly filling out the reasoning.

How would that reasoning go? Olson has made a plea on behalf of the same-sex couple who earnestly love each other. Judge Sotomayor might well be asked why the same principle would not work on behalf of ensembles of three or four people who profess their love in the same way. Is there something in that principle of “equal protection” that works to confine the claim of marriage to two people? She might be asked, not how she would decide a case, but how judges would reason about a problem when it is presented in that way.


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Articles by Joe Carter

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