Doug Kendall from the Huffington Post Glosses over Sotomayor's Answer on Baker v. Nelson

I had a chuckle when I read what Doug Kendall had to say about Senator Grassley's question on Baker v. Nelson.

Updated 5:23: In reponse to a question about Baker v. Nelson, a 1972 case which Sen. Grassley (R-Iowa) seems to believe prevents the Supreme Court from exercising jurisdiction over cases involving same-sex marriage, Judge Sotomayor gets into the question of what to do when two precedents of the Supreme Court come into conflict. This process of choosing between two potentially applicable precedents is one of those functions of a Supreme Court justice which makes "applying the law to the facts" less than a mechanical ("umpire"-like) process.

First to the exchange between Senator Grassley's question to Sotomayor on the Baker case.



The narrative of the exchange can be found at the Washington Post.

Here are some clips of the exchange..

SOTOMAYOR: ... pending and impending in many courts. As you know, the issue of marriage and what constitutes it is a subject of much public discussion. And there's a number of cases in state courts addressing the issue of what -- who regulates it, under what terms.


GRASSLEY: Can I please interrupt you? I thought I was asking a very simple question based upon a precedent that Baker v. Nelson is based on the proposition that yesterday in so many cases, whether it was Griswold (ph), whether it was Roe v. Wade, whether it was Chevron, whether it's a whole bunch of other cases that you made reference to, the Casey (ph) case, the Gonzalez (ph) case, the Leegin Creative Leather Products case, the Kelo case. You made that case to me. You said these are precedents. Now, are you saying to me that Baker v. Nelson is not a precedent?

GRASSLEY: Now, I believe that I'm going to ask you something you never been asked before during this hearing, I hope. I'd like to be original on something.


I want to say to you that there's a Supreme Court decision called Baker v. Nelson, 1972. It says that the federal courts lack jurisdiction to hear due process and equal protection challenges to state marriage laws, quote, "for one of substantial federal question," which obviously is an issue the courts deal with quite regularly. I mean, the issue of is it a federal question or not a federal question. So do you agree that marriage is a question reserved for the states to decide based on Baker v. Nelson?


SOTOMAYOR: That also is a question that's...


GRASSLEY: I thought I was asking...

SOTOMAYOR: No, sir. I just haven't reviewed Baker in a while. And so, I actually don't know what the status is. If it is the court's precedent, as I've indicated in all of my answers, I will apply that precedent to the facts of any new situation that implicates it.

Two points, the Obama administration has argued in a Motion to Dismiss in the United States District Court, a case between Arthur Smelt and Christopher Hammer versus the United States, that Baker v. Nelson applies.

Here is a case where hearings will be held in August based on the Obama administration's motion to dismiss a case citing the Baker v. Nelson decision and Sotomayor has not reviewed Baker in a while?

In response to Sotomayor's answer on not having reviewed the Baker precedent, Senator Grassley should have asked Sotomayor what does she read and what opposing decision exists out there (since she has not reviewed Baker) to back up her hypo in legal thinking.

I don't buy her statements made to Senator Grassley. Getting back to the Senator on the Baker case doesn't cut it.