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What Is It About the Law That John Cornyn Doesn’t Understand?

Sen. John Cornyn (R-Texas) is a former State Supreme Court judge. So it’s hard to believe that he really doesn’t understand what judges do. Yet that’s exactly what his line of questioning to Judge Sonia Sotomayor on day three of her confirmation hearing this morning suggested.

Here’s Cornyn, speaking to Sotomayor with a tone of severe disapproval: “You wrote that the law is always in a necessary state of flux. That it’s not a definitive ‘capital L’ law that many would like to think exist. And that the public fails to appreciate the importance of indefiniteness in the law. Can you explain why you think indefiniteness is so important?”

“It’s not that it’s important to the law as much as it is what legal cases are about,” Sotomayor responded in the same patient, methodical tone she’s used throughout her confirmation hearing. “People bring legal cases to the law because they believe precedents don’t clearly answer the factual situation in their case. That’s why they bring cases. If law was always clear we wouldn’t have judges. Its because there is indefiniteness not in what the law is but its application to new facts that people sometimes feel it’s unpredictable.”

But Cornyn persisted: “You wrote what appears to be an endorsement that judges can change the law,” he said, clearly disturbed by that idea.

Interestingly, when Cornyn criticized Sotomayor for her decision in the reverse discrimination case of Ricci v. DeStefano, and expressed his support for the Supreme Court’s decision, he didn’t mention that the Supreme Court made new law in that case. As Sotomayor explained when Cornyn expressed “shock” that Sotomayor and the other Second Circuit judges gave such “short shrift” to the sympathetic claims of the hardworking white firefighters:

“The Supreme Court in its decision set a new standard for reviewing what an employer is doing — the substantial evidence test,” said Sotomayor. That standard wasn’t addressed by the court of appeals, she said, because it wasn’t even argued to the court by the parties in the case. “That was a new standard created by a decision by the court, borrowing from other areas of the law.”

Cornyn quickly moved on to the next subject.

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