Thursday, June 18, 2009
Senator Arlen Specter wrote this week to Judge Sonia Sotomayor to get her views on judicial scrutiny of Congressional fact-finding. The letter suggests that Specter thinks the Court's increasing scrutiny in cases like U.S. v. Morrison (ruling that Congress exceeded its authority under Section 5 of the Fourteenth Amendment in enacting the Violence Against Women Act) and Alabama v. Garrett (ruling that Congress exceeded its authority under Section 5 in enacting the Title I of the ADA) is inappropriate.
The issue is particularly important now, as the Court sets to rule in Northwest Austin Municipal Utility District v. Holder, the case challenging Congressional reauthorization of the preclearance provision in the Voting Rights Act. (We most recently covered the case here.)
Senator Specter's letter references the oral argument in that case, quoting Chief Justice Roberts's questions that implied criticism of Congressional fact-finding in support of reauthorization. And he compared those questions to Chief Justice Roberts's very different answers to questions at his confirmation hearings. Senator Specter:
The Supreme Court heard oral argument in Northwest Austin Municipal Utility District v. Holder on April 29, 2009, involving the sufficiency of the Congressional record on reauthorizing the Voting Rights Act. While too much cannot be read into comments by justices at oral argument, Chief Justice Roberts's statements suggested a very different attitude on deference to Congressional fact finding than he expressed at his confirmation hearing.
Senator Specter leaves no doubts in the letter where he comes down on the adequacy of Congressional fact-finding in support of VRA reauthorization:
As a factual basis for the 2007 Voting Rights Act, Congress heard from dozens of witnesses over ten months in 21 different hearings. Applying the approach from Chief Justice Roberts's confirmation hearing, that would appear to satisfy the "congruence and proportionality standard."
So here are the Senator's questions to Judge Sotomayor:
1. Would you apply the Justice Harlan "rational basis" standard or the "congruence and proportionality standard" [when reviewing Congressional findings in support of legislation under Section 5 of the Fourteenth Amendment]?
2. What are your views on Justice Scalia's characterization that the "congruence and proportionality standard" is a "flabby test" and "an invitation to judicial arbitrariness and policy driven decision making"?
3. Do you agree with Chief Justice Rehnquist's conclusion that the Violence Against Women legislation was unconstitutional because of Congress's "method of reasoning"?
4. Do you agree with the division of constitutional authority between Congress and the Supreme Court articulated by Chief Justice Roberts in his responses [at his confirmation hearings]?
Judge Sotomayor's answers will likely depend on whether the Court rules in the NAMUD case before she has a chance to answer--her hearings are now set to begin on July 13--and, if so, how.