Friday, June 5, 2009

Nomination Watch: Debate Over Sotomayor's Record Widens

     The debate over Supreme Court nominee Sonia Sotomayor is taking on more substance now that the judge has begun courtesy calls at the Senate and submitted to the Senate Judiciary Committee a questionnaire that one leading critic promptly labeled as incomplete.
     The White House continues to push for an early confirmation hearing even as Republican senators call for more time to examine the voluminous record of decisions, speeches, and other public statements listed in Sotomayor’s 172-page questionnaire that was turned over on Thursday (June 4).
     First-day coverage of the questionnaire in, for example, the New York Times and Washington Post focused on Sotomayor’s frequent discussion of her ethnicity in her speeches. The Post described the judge as “driven by a powerful ethnic pride.” The Times noted that Sotomayor had used “on more than one occasion” the “wise Latina” phrasing that had already stirred controversy when first noted from a speech the judge delivered in 2001.
     Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., sought to defuse the controversy following his June 4 meeting with Sotomayor by quoting her as assuring him that she understands a judge must “ultimately and completely” follow the law. Two days later, Sen. Susan Collins, R-Maine, quoted Sotomayor as describing as “aspirational” the statement in the speech that she “hoped” that a “wise Latina judge” would “often” make a better decision than a white male. (The full text is here, from the Times Web site.)
     A new controversy arose on Friday (June 5) when Wendy Long, general counsel of the Judicial Confirmation Network, said that Sotomayor’s questionnaire omitted any mention of position papers opposing the death penalty that she had joined in the 1980s while a leader in what was then called the Puerto Rican Legal Defense and Education Fund (now LatinoJustice PRLDEF). In a letter to Judiciary Committee members, Long acknowledges that Sotomayor cited a letter she wrote in 1981 opposing reinstatement of the death penalty in New York. But Long charges that the questionnaire is “incomplete” because Sotomayor did not also cite the group’s 1982 policy memorandum, signed by Sotomayor, criticizing the death penalty as “counterproductive” and “associated with racism.”
     Earlier, Sotomayor had drawn criticism from the National Rifle Association and other gun-rights advocates for having joined in an unsigned ruling in January finding no Second Amendment restriction on state and local laws regulating handguns. The six-page opinion said that the Supreme Court’s 2008 ruling striking down a District of Columbia ban on handguns did not alter the court’s previous rulings that the Second Amendment does not apply to the states.
     Criticism of the ruling was blunted somewhat by a decision to similar effect by the Seventh U.S. Circuit Court of Appeals on June 3 written by conservative Judge Frank Easterbrook and joined by fellow conservative, Richard Posner. The NRA promptly sought Supreme Court review of the nine-page ruling, which upheld a handgun ban adopted by the city of Chicago and village of Oak Park.
     Meanwhile, the criticism of Sotomayor’s “wise Latina” speech has also been blunted by a detailed examination of the judge’s race-related rulings by Supreme Court advocate and SCOTUSBlog publisher Thomas Goldstein. In two postings on May 29, Goldstein said that Sotomayor had rejected discrimination claims in 78 out of 96 cases analyzed and had differed with other judges in only four of the cases. On that basis, Goldstein concluded, “it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.”
     With Republican senators still noncommittal on Sotomayor’s nomination, GOP members of the Judiciary Committee are preparing for what they say will be thorough but respectful questioning whenever the hearings are held. “I think those of us in the Senate are sure to treat this nominee fairly,” Sen. Jeff Sessions of Alabama, the ranking Republican on the panel, told Politico in advance of his meeting with Sotomayor. In apparent concession to the need for civility, former House Speaker Newt Gingrich later retracted his previous description of Sotomayor as a “racist” based on the “wise Latina” remark. In his Human Events column, Gingrich said, “The word ‘racist’ should not have been applied to Judge Sotomayor as a person, even if her words themselves are unacceptable.”
     Sotomayor’s questionnaire recited dryly and exhaustively her background from her education at Princeton University and Yale Law School through her work as a prosecutor and corporate lawyer until her appointment to the federal district court by President George H.W. Bush in 1992 and her elevation to the Second Circuit by President Bill Clinton in 1998. Among the revelations in the questionnaire: the White House first contacted Sotomayor about the upcoming vacancy on April 27, three days before news of Justice David H. Souter’s planned retirement surfaced (pp. 171-172). The questionnaire also discloses that the judge, who turns 55 on June 29, is of modest financial means. She lists her net worth at just over $740,000.

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