Re: Judge Sonia Sotomayor supplemental response to Senate questionnaire
Unfortunately, even with the additional submissions of June 15, 2009, Judge Sotomayor s answers and document production to the Senate Judiciary Committee’s questionnaire ” and, accordingly, to the American people ” are still incomplete.
Question 12(b) calls for Judge Sotomayor to disclose (and indeed, to provide four copies of) any reports, memoranda, or policy statements you prepared or contributed to the preparation of on behalf of any bar association, committee, conference, or organization of which you were or are a member or in which you have participated . . . . and to include any such documents produced by any working group of such organizations even where you did not contribute to it.
This question would call for any such documents produced by the Puerto Rican Legal Defense and Education Fund (PRLDEF) during the years 1980 to 1992, when Judge Sotomayor was a member of the PRLDEF and held a variety of leadership positions, including: member of Board of Directors, Vice President of Board of Directors, Chairperson of Litigation Committee, Chairperson of Education Committee, and ” according to her June 15 submission, Special Vice Chairperson (1984-85), Second Vice-Chairperson (1986), and First Vice-Chairperson (1987-88).
Judge Sotomayor initially provided only one document concerning her 12 years with the PRLDEF: a short letter to former New York Governor Carey dated April 10, 1981 (which she did not sign, but which was nevertheless sent by the PRLDEF) opposing reinstatement of the death penalty.
After Senators on the Judiciary Committee noted that she had omitted from her questionnaire response a far more extensive memorandum on the death penalty produced by a task force of which she was a member, dated March 24, 1981, the Judge produced that memo. In addition, she has produced several additional documents related to my work for the PRLDEF, including a letter that begins, Dear Friend of Bilingual Education.
She still, however, fails to disclose or produce easily available public documents that were filed by the PRLDEF during the time that she was affiliated with it, including at least six briefs filed with the United States Supreme Court between 1980 and October 1992 in high-profile abortion cases.
PRLDEF filed amicus briefs in Williams v. Zbaraz (1980), arguing in favor of public funding of abortions; in Webster v. Reproductive Health Services (1988, when Judge Sotomayor now says she was First Vice-Chairperson ), urging the Court to invalidate Missouri s modest abortion regulations, in effect reading the Freedom of Choice Act ( FOCA ) into the Constitution, arguing that abortion is a fundamental right and that any regulation of it be subjected to the strict scrutiny standard, arguing against ultra-sound testing for every abortion, and arguing that abortion on demand is necessary to prevent countless more . . . children of the poor and hungry from suffering; in Ohio v. Akron Center for Reproductive Health (1990), opposing parental notification of abortion for minors and insisting that adolescent women s right to choose is part of a fundamental constitutional right to abortion; Rust v. Sullivan (1991), opposing Title X regulations about use of federal funds in abortion counseling and referral; and Planned Parenthood v. Casey (1992), comparing abortion to free speech and arguing that even modest regulations like 24-hour waiting periods and parental consent for teenage abortions are unconstitutional.
It is worth nothing that the Webster brief signed by the PRLDEF was also signed by a number of left-wing groups, including the Workers World Party (a Communist party in the United States, which describes itself as based on the great revolutionary concepts of Marx and Lenin, advocates class solidarity to overcome capitalism, fight[s] [to] end sexism and women s oppression, . . . which means access to legal, safe abortion, and recognize[s] the right of nations to self-determination, including the nationally oppressed peoples inside the United States, and supports affirmative action as absolutely necessary in the fight for equality ).
According to The New York Times (May 28, 2009), the PRLDEF board monitored all litigation undertaken by the fund s lawyers, and a number of those lawyers said Ms. Sotomayor was an involved and ardent supporter of their various legal efforts.
Judge Sotomayor has not disclosed the dates when she served at PRLDEF as member of the Board of Directors, Vice President of Board of Directors, Chairperson of Litigation Committee, or Chairperson of Education Committee. These also must be disclosed.
During her Senate hearing for her appointment to the federal district court, Judge Sotomayor testified of the PRLDEF that she had been involved . . . in directing its policies. It would seem highly unlikely that over this twelve-year period, while she held a variety of leadership positions, she was not involved in directing its policies that led to the extreme positions taken in all these abortion cases.
In addition, Judge Sotomayor still has not made any disclosures regarding the 1981 U.S. District Court for the Southern District of New York settlement in which PRLDEF was involved, forcing the New York City police department to institute racial quotas for the hiring and promotion of police officers. According to The New York Times (May 28, 2009), PRLDEF s efforts were backed by the defense fund s board of directors, an active and passionate group that included a young lawyer named Sonia Sotomayor.
Question 12(b) would require that the Judge submit anything she wrote while serving on PRLDEF’s board, as well as any documents containing public positions the organization took, which would include briefs.
In addition, Question 12(c) calls for four copies of any testimony, official statements, or other communications relating, in whole or in part, to matters of public policy or legal interpretation, that you have issued or that other presented on your behalf to public bodies or public officials. This question does not seem limited to matters presented on behalf of Judge Sotomayor personally, but rather in her professional capacity, in her work as a prosecutor, a lawyer in private litigation practice, and a lawyer performing pro bono work with a public interest law firm such as the PRLDEF.
Moreover, Question 16(e) calls for four copies of any briefs, amicus or otherwise . . . in connection with your practice . . . before the Supreme Court of the United States, the highest court of any state, or any state or federal courts of appeals. Again, the PRLDEF briefs submitted to the U.S. Supreme Court in the various abortion cases, as well as briefs in any appellate courts on these or other matters, during the time period when Judge Sotomayor was affiliated with the PRLDEF, would be responsive to this question.
Although Judge Sotomayor lists the PRLDEF as part of her pro bono legal practice in response to Question 25, noting I had served, at various times, as the First Vice President of the Board of Directors of the Fund and as Chairperson of its Litigation and Education Committees, she fails to disclose the PRLDEF in response to Question 16(a)(iii), which requires disclosure of the dates, names, and addresses of law firms or offices, companies, or governmental agencies with which you have been affiliated, and the nature of your affiliation with each. The PRLDEF is a public interest law firm (and is also a law office and a company ) with which the Judge was affiliated as a board member and in other high-ranking offices. (Again, the complete list of which offices she occupied on which dates still has not been provided.)
One wonders if the reason that the PRLDEF work was not disclosed in answer to Question 16(a)(iii) was to avoid making disclosure of controversial amicus briefs in Question 16(e). It does seem odd that key legal briefs, board memos and correspondence, and related litigation documents have somehow fallen through the cracks, but a banal Dear Friend of Bilingual Education letter is now produced.
Moreover, Judge Sotomayor has not rectified the non-responsive answers she submitted to Questions 26(b) and (c) regarding whether there have been communications during the selection process that could reasonably be interpreted as seeking any express or implied assurances concerning your position on [any specific] issue. Assurances that have been reported in the press on the abortion issue would seem to indicate that a more fulsome answer than no is appropriate.
Similarly, one wonders how Judge Sotomayor can be unaware, under the terms of Question 26(c), of representations . . . made by the White House or individuals acting on behalf of the White House . . . to any individuals or interest groups as to how you might rule as a Justice. In addition to any such representations by the White House that have been aimed at abortion advocacy groups, for example, Vice President Biden assured various law enforcement groups and individuals at a White House event on June 9, 2009 that Judge Sotomayor has your back. Presumably, the Vice President did not mean that Judge Sotomayor was literally guarding these representatives with a firearm while they were in Washington, D.C. that day. The clear implication of the statement was a promise that, if confirmed to the U.S. Supreme Court, she would rule in favor of law enforcement.
We would ask on behalf of the American people, who deserve the promised transparency with respect to this nomination, that all appropriate disclosures be made promptly.
Wendy E. Long
Counsel, Judicial Confirmation Network
cc: All United States Senators
Greg Craig, White House Counsel