Friday, June 12, 2009

Nomination Watch: Sotomayor's Critics Dig Through Record

      Republicans and conservative groups are looking hard for vulnerabilities in Supreme Court nominee Sonia Sotomayor’s record even as two independent evaluations depict her as a moderate judge attentive to detail and respectful of precedent.
      The in-depth examinations of Sotomayor’s judicial decisions by the American Civil Liberties Union and a Supreme Court expert at the University of Texas Law School came as Senate Judiciary Committee Chairman Patrick J. Leahy said confirmation hearings would start on July 13.
      Leahy’s decision to pick a date sooner than Republicans had been urging left GOP senators fuming and threatening parliamentary obstruction. The Judiciary Committee’s Republican minority responded with a four-page letter demanding more information about Sotomayor’s record on and before taking the bench.
      The GOP letter, available here from the CBS News Web site, seconded a request made earlier by the conservative Judicial Confirmation Network for more documents pertaining to Sotomayor’s role as a board member of the Puerto Rican Legal Defense and Educational Network in the group’s opposition to capital punishment. (The group is now called LatinoJustice PRLDEF.) It also asked Sotomayor to justify her claim on her previously submitted questionnaire that her continuing membership in an all-female social organization does not violate judicial ethics.
      The letter went on to ask Sotomayor for a more complete return of her speech transcripts, appellate court briefs, and even every article she had edited as an editor of two law journals at Yale Law School in the 1970s. The additional information was needed, the letter said, “to properly evaluate your record in the short time that has been provided.” The White House responded by treating the omissions as a normal part of the process and promising to provide the requested information as soon as possible.
      Both Leahy, D-Vt., and Majority Leader Harry Reid, D-Nev., dismissed Republicans’ complaints about the confirmation schedule. They said the seven weeks between President Obama’s nomination of Sotomayor and the start date roughly corresponded to the time elapsed between President George W. Bush’s nomination of Chief Justice John G. Roberts Jr. and the start of confirmation hearings in 2005. Republicans said that because of Sotomayor’s extensive judicial record, the better comparison would be the three months between Bush’s selection of Justice Samuel A. Alito Jr. and the start of confirmation hearings in January 2006. “This is a confirmation process, not a confirmation race,” Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, told reporters.
      Meanwhile, the conservative Federalist Society — which played a major role in promoting the Roberts and Alito nominations — helped give reporters a glimpse into some of the strategy likely to be used in testing Sotomayor’s confirmation. In a conference call organized by the group and as reported here on National Public Radio’s Web site, the lawyers said Sotomayor will be challenged for several race-related rulings and a gun rights decision as well as her role in the Puerto Rican advocacy group’s anti-death penalty stance.
      The rulings due for scrutiny include the New Haven firefighters case now before the Supreme Court. In that case, Ricci v. DeStefano, Sotomayor joined a unanimous three-judge panel in upholding a lower court’s decision to dismiss a suit by white and one Hispanic firefighter challenging the Connecticut city’s action to scrap the results of a promotions exam because no black firefighters qualified for promotion. In a second case, Sotomayor joined in arguing in dissent that police in Oneonta, N.Y., violated equal protection by rounding up African-American men for interrogation after a white woman alleged she was raped by a black man. The ruling in Brown v. Oneonta (2002) refused to rehear a panel’s unpublished decision rejecting a civil rights suit by some of those interrogated in the incident.
      The conservative lawyers also said Sotomayor would face questioning for joining a decision earlier this year declining to apply the newly recognized Second Amendment right to possession of handguns to state and local governments. The unsigned ruling in Maloney v. Cuomo (2009) — which involved not guns but the martial arts weapon nunchukas — said it was up to the Supreme Court to decide the question.
      Earlier, the ACLU released an 86-page report on Sotomayor’s record on civil rights and civil liberties issues. Without taking a position on the nomination, the report, available here, calls her rulings difficult to characterize as liberal or conservative and favorably depicts her judicial craftsmanship for “a detailed attention to the facts and a close regard for precedent.”
The ACLU report discounts criticism of Sotomayor’s now famous “wise Latina” speeches and says her race-related rulings “reflect a careful examination of the relevant facts and law, and a disposition to decide cases narrowly” (p. 4). The report notes that Sotomayor ruled the Bush administration’s use of national security letters unconstitutional in one case, but backed national security in a second ruling upholding suitcase searches of passengers on a cross-border ferry between the United States and Canada. In the Second Amendment case, the ACLU said Sotomayor’s vote “cannot fairly be read as any indication” of her views on the issue (p. 86).
      In another independent assessment, University of Texas law professor Stefanie Lindquist is describing Sotomayor as neither liberal nor consistently activist as conservative critics have been claiming. As reported here in the National Law Journal, Lindquist, co-aauthor of a forthcoming book on measuring “judicial activism,” said her “preliminary” findings indicate that Sotomayor took liberal positions in about 40 percent of all decisions and about 50 percent of all non-criminal rulings. Sotomayor was somewhat more liberal in her dissenting opinions, according to Lindquist, taking liberal stances in 12 out of 19 cases. But Lindquist also noted that Sotomayor had invalidated a state or federal statute only once — striking down a state statute once on preemption grounds.

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