Hatch delves into Sotomayor's views on privacy, empathy

During his second chance to question Supreme Court nominee Sonia Sotomayor, Sen. Orrin Hatch prompted her Wednesday to outline how she believes the "right to privacy" emerged to allow abortion, whether she believes judges may legislate from the bench, and how a judge may properly use empathy.

As Hatch asked whether judges can read new rights into the Constitution, Sotomayor saw where Hatch was going — and discussed the "right of privacy" not specifically mentioned in the Constitution and how it was used to allow abortion on demand.

She said the "right to privacy" is actually a misnomer.

"I've not viewed what the court has been doing as creating a right that doesn't exist in the words of the Constitution. What I understand the court to be saying is there's this situation, someone's privacy is being affected by this government regulation," Sotomayor said.

"Does the right in the Constitution, the liberty clause in the due process provision, protect the individual from that invasion of their privacy? People in shorthand have called it the right to privacy."

But Sotomayor would not say, despite two days of trying by many senators, what she personally believes about abortion or previous rulings on it and the right to privacy.

Hatch also asked her about speeches where she said that circuit courts "are where policy is made" and they seek "justice for society." He asked whether such phrases means she feels it is appropriate for judges to legislate from the bench or look to broader concerns beyond the law.

She said she was trying to explain to students the differences in focus of the trial-level district court and the appeals-level circuit courts. She said district court judges know their "decision is not binding on anybody else. … Their focus is on this case, what does it mean, it's not affecting anybody else."

But in circuit courts, she said, "You're looking at the effect of those cases on other similar situations. … They are looking at what the law is to announce it, recognizing that it's going to now affect other cases and other people. So your focus is different."

Hatch also asked Sotomayor to describe how she would use empathy — a trait President Barack Obama said she would show as a judge — and whether it might somehow override or bend the law.

"I can state what I believe very simply," she said. "Life experiences help the process of listening and understanding an argument. The law always directs the results of the case. A judge cannot decide cases on the basis of personal feelings, biases or sympathy."

She said she has said in speeches "that a judge always has to guard against those things affecting the outcome of a case."

"Is judicial impartiality a duty or an aspiration?" Hatch asked her, adding it appeared to him that she came "down on the fact that it's a duty."

Sotomayor said, "It's absolutely a duty, senator."

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