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The following originally appeared as an op-ed in AOL News. -Staff

When President Barack Obama chooses his second Supreme Court nominee, the Senate must determine the kind of justice that nominee would be. The debate about judicial nominees, after all, is really a debate about judicial power and the role federal judges are supposed to play in our system of government.

One side in that debate wants judges who will rule the way they want on the issues they care about. The political ends justify the judicial means and the only thing that matters is which side wins. Judges may mangle, manipulate and manhandle the law so long as they deliver politically correct results. These advocates of a politicized judiciary label as "activist" any Supreme Court decision that does not favor their political interests.

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Instead of just asking his own questions of Supreme Court nominee Sonia Sotomayor, Sen. Orrin Hatch asked her some on Thursday that Utahns suggested.

"I invited constituents in Utah to send their questions, and got an overwhelming response," he said. But he asked only two of them. One was about whether the role of judges is to correct social injustice, and the other was whether the Constitution is more important than more recent court opinions.

Hatch said one Utahn asked "whether you see the courts, especially the Supreme Court, as an institution to resolving perceived social injustices, inequities and disadvantages?" (Hatch added, "I thought it was an interesting question.")

"No, that's not the role of the courts," Sotomayor said.

"The role of the courts is to interpret the law as Congress writes it," she said, adding that may incidentally have the outcome of fixing social injustice. "But it's not the role of the judge to create that outcome. It's to interpret what Congress is doing, and do what Congress wants."

Hatch said, "Another constituent asked, 'Which is more important or deserves more weight: the Constitution as it was originally intended, or newer legal precedent?'" (Hatch added, "That's a good question.") ...

Hatch added that many of the questions Utahns submitted were about gun rights, but such questions had already been asked (without Sotomayor revealing much about her views).

Previous: Ask Judge Sotomayor

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The following originally appeared as an op-ed in the National Review. -Staff

We must examine Sonia Sotomayor's entire record.

The Judiciary Committee hearing on the nomination of Judge Sonia Sotomayor to replace Justice David Souter must be respectful and thorough and must focus on whether she is qualified to serve on the Supreme Court. Judicial qualifications include legal experience and, more important, an understanding of the power and role of judges in our system of government.

The Obama administration and Senate Democrats say that Judge Sotomayor's cases, not her speeches and articles, reveal her approach to judging. When then-senator Barack Obama opposed the appeals-court nomination of California supreme court justice Janice Rogers Brown in 2005, however, he examined her "speeches outside of the courtroom" for clues about her "overarching judicial philosophy." If that approach was fair when Senator Obama opposed Republican nominees, it should be fair when President Obama picks his own nominees.

Judge Sotomayor spoke about elements of judicial philosophy in one speech that she gave at least five times during ten years of her judicial service. She said, for example, that transcending personal sympathies and prejudices is an aspiration that judges probably cannot accomplish in most cases, and even questioned whether they should try. She said that, in deciding cases, her personal experiences "affect the facts that I choose to see" and that judges must assess when their personal "opinions, sympathies and prejudices are appropriate."

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Senator Hatch wants to give an opportunity to participate in the U.S. Senate's confirmation hearings for Judge Sonia Sotomayor's nomination to the U.S. Supreme Court by submitting a question for Judge Sotomayor.

Senator Hatch explains:

I would like to give you the opportunity to participate in Judge Sotomayor's hearings this week by emailing me any questions you would like to see asked at the hearing. Although I cannot guarantee your question will be asked, I will certainly review the questions you submit and see if there is an opportunity to use them during the course of the hearings.

Please email your questions to askjudgesotomayor@hatchforsenate.com.

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Senator Hatch gave his opening statement on the nomination of Judge Sonia Sotomayor this morning. His full statement follows:

Thank you, Mr. Chairman.

This is the twelfth hearing for a Supreme Court nominee in which I have participated, and I am as struck today as I was the first time by the seriousness of our responsibility and its impact on America.

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The following originally appeared as an op-ed in Politico. -Staff

President Barack Obama had barely announced that he would nominate Judge Sonia Sotomayor to replace Supreme Court Justice David Souter when the "news" media declared that she would be confirmed. The American people, however, expect the Senate to do its confirmation duty correctly rather than quickly. By a thorough and fair process that, when he was a senator, Obama argued should be "civil and deliberate," we must determine whether Sotomayor is qualified to sit on the Supreme Court.

Qualifications fall into two categories. The first includes experience and character. The administration once suggested that Souter's replacement should come from other than the U.S. Court of Appeals, on which every current Supreme Court justice has served. Having chosen another federal appellate judge, the administration now emphasizes instead that Sotomayor has more federal judicial experience than any Supreme Court nominee in a century. This means, of course, that it will take time properly to review and consider the enormous record that accumulates during such extensive judicial service.

Qualifications, however, go beyond such experience. The more important qualification is Sotomayor's judicial philosophy, or her understanding of the power and role of judges in our system of government. In other words, what kind of judge is she now and what kind of justice will she be? As a senator arguing against one of President George W. Bush's appeals court nominees, Obama argued that judges must "subordinate their views in order to decide each case on the facts and merits alone."

But as a presidential candidate, he pledged to pick judges who have empathy toward certain groups and, as president, said that a judge's personal empathy is an "essential ingredient" in arriving at just decisions. Does Sotomayor subscribe to one of these very different judicial philosophies?

Sotomayor has written articles and given speeches that suggest a very expansive view of judicial power. She has, for example, endorsed a judiciary that is "constantly overhauling the law" and has questioned whether judges should even attempt to transcend their personal sympathies and prejudices in deciding cases. She and others have emphasized the need for judges to understand and appreciate the impact of their decisions on people's lives.

The question is not whether, as a human being, Judge Sotomayor has empathy, but what, as a judge, she does with it. Clarifying her judicial philosophy requires going beyond generalizations and clichés, avoiding litmus test political issues and focusing on the process by which Judge Sotomayor would interpret and apply the law to decide cases.

These are just a few elements of what should be the Senate's main focus -- whether Sotomayor is qualified by experience and character, and especially by judicial philosophy, to sit on the Supreme Court of the United States.

Some would distract senators from independently examining the nominee's current record by insisting that support for her 1998 appeals court nomination requires support for her current Supreme Court nomination. This view is probably another epiphany produced by the last election, because Democrats have in the past felt no such obligation. Justice Samuel Alito was unanimously confirmed to the U.S. Court of Appeals in 1990. In 2006, 17 Democrats who were still in the Senate were among the 42 votes against him. Chief Justice John Roberts was unanimously confirmed to the U.S. Court of Appeals in 2003. Less than three years later, 21 Democrats felt unconstrained by their past support for him and opposed his Supreme Court nomination.

Justice Clarence Thomas was unanimously confirmed to the U.S. Court of Appeals in 1990. Only 19 months later, 43 Democrats abandoned their previous support and opposed his Supreme Court nomination. Then-Sen. Joe Biden (D-Del.) was in each of these groups. On Feb. 6, 1990, while chairing the Judiciary Committee hearing on Clarence Thomas' appeals court nomination, he explained that "there is a fundamental distinction between what is required of and should be sought of a circuit court judge and a district court judge and a Supreme Court judge."

Now that Obama has nominated Sotomayor, the Senate must evaluate her record and determine whether she is qualified to sit on the highest court in the land. That is a current duty that must be fulfilled on her current record so that the American people will know what kind of justice she will be.

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The following originally appeared as an op-ed in the National Review. -Staff

President Obama's nomination of Judge Sonia Sotomayor to replace Supreme Court Justice David Souter puts the judicial-selection ball in the Senate's court. We can serve America well by focusing on whether she is the kind of justice America needs, in a process that is both thorough and fair.

The Constitution gives the power to nominate and appoint judges to the president, not to the Senate. The appointment power is discussed in Article II, not in Article I. The election of a Democratic president has no doubt produced an epiphany on this point among Senate Democrats, who argued under a Republican president that the Senate has an independent and coequal role in the process. But the Constitution labels the Senate's role in checking the president's appointment power as "advice and consent." The Senate must advise whether the president should appoint his nominees by giving or withholding consent.

The basis for that decision is whether Sotomayor is qualified to sit on the Supreme Court. Qualifications fall into two general categories: a nominee's experience and character, and her judicial philosophy. The latter is the most important and the most challenging to determine. "Judicial philosophy" refers to a nominee's understanding of the power and role of judges in our system of government. In other words, what kind of judge will she be?

The clues for answering this question must come from Sotomayor's record, which includes her speeches, articles, and written opinions, as well as the responses she will provide during the coming weeks. Many analysts, reporters, and grassroots advocates act as if a judge's philosophy can be determined with a calculator: They look at which side won, or which political interest benefited, and label the decision and the judge accordingly. That is the wrong standard. Politics is about winners and losers, and it is appropriate to characterize politicians as being pro-this or anti-that. But judging is about the process of reaching results -- about whether the law or the judge determines winners and losers, no matter the issues or the parties involved. In their oath of office, in fact, judges swear to administer justice "without respect to persons" and to perform their duties impartially.

In the Senate, on the campaign trail, and during his first months in office, President Obama has suggested that he thinks judges should do something quite different. He has said judges should decide cases based on their personal values, or what is in their hearts. He has not only promised to appoint judges who have personal empathy toward certain groups, but also said that such personal feelings are essential for arriving at just decisions. Empathy is an admirable quality, but the question is not whether judges have empathy, but what they do with it -- whether they use it instead of the law to make decisions. If so, then President Obama's criteria are simply code for good old-fashioned judicial activism. If that is what he means, he should defend it. If that is not what he means, he should explain it.

It would be appropriate to assume that Judge Sotomayor at least generally fits the president's criteria. And she has made statements of her own that raise similar concerns. In a 1996 article, she endorsed a legal system in which judges are "constantly overhauling the law." In a 2002 speech, she doubted whether judges can transcend their personal sympathies and prejudices "even in most cases" and questioned whether they should do so at all. At a 2005 conference, she stated flatly that "the Court of Appeals is where policy is made." The confirmation process is an opportunity to determine what these and other clues about Sotomayor's judicial philosophy mean, and what they say about her qualifications to join the Supreme Court.

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Senator Hatch recently wrote an essay for Harvard Journal of Law & Public Policy about the role of the Constitution in judicial nominations and confirmations.

Below are a few excerpts:

Nonetheless, the timing of this Essay is auspicious in several respects. First, I write in the wake of two very relevant Federalist Society student symposia, last year's about the people and the courts and this year's about the separation of powers. Second, President Obama has been particularly clear from the time he was a candidate about his intention to appoint judges who will exercise a strikingly political version of judicial power. Third, he has already started acting on that intention by making his first judicial nominations. New Presidents typically make their first judicial nominations in July or even August, yet the Senate Judiciary Committee has already held a hearing on the President's first nominee to the U.S. Court of Appeals, and the President sent two more nominees to the Senate just a few days ago.

The timing of publication of Senator Hatch's essay was bolstered by the news last week that Supreme Court Justice David Souter planned to retire this summer.

Continuing, Senator Hatch explains the role of the Constitution in judicial nominations:

Consider a judicial nomination as a hiring process based on a job description. The job description of a judge is to interpret and apply law to decide cases. This job description does not mean whatever a President, political party, or Senate majority wants it to mean. Our written Constitution and its separation of powers set the judicial job description. Interpreting written law must be different than making written law. Because law written in statutes or the Constitution is not simply words, but really the meaning of the words, only those with authority to make law may determine what the words of our laws say and what those words mean. Judges do not have authority to make law, so they do not have authority to choose what the words of our laws say or what they mean. In other words, judges apply the law to decide cases, but they may not make the law they apply. Judges and the law they use to decide cases are two different things. Judging, therefore, is about a process that legitimates results, a process by which the law made by the people and those they elect determines winners and losers.

The Constitution and its separation of powers compel this judicial job description. This kind of judge is consistent with limited government and the ordered liberty it makes possible. Justice Markman's article describes what he calls a "traditional jurisprudence -- one that views the responsibility of the courts to say what the law 'is' rather than what it 'ought' to be." Such a philosophy of judicial restraint -- an understanding of the limited power and role of judges -- is a qualification for judicial service. This is the kind of judge a President should nominate.

Read the entire essay on Scribd.

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