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    Release The Sotomayor Memos

    Release The Sotomayor Memos

    Barack Obama campaigned on the theme of a new era of transparency. Obama used that theme as a justification for the release of four highly classified internal Justice Department memos detailing strategies for interrogation of alQaeda detainees, over the objections of Obama’s own Director of the CIA.

    It’s time to bring that same level of transparency to the nomination of Sonia Sotomayor to the Supreme Court. The New York Times is reporting that each of the candidates on Obama’s short-list was the subject of an 60-70-page memo detailing the investigation into her background, including judicial writings and other information gleaned by the vetters. Obama should release the memos on Sotomayor, as well as any other documents used in the decision-making process.

    The release of the memos will have a positive effect on the debate over Sotomayor. One of the problems in assessing the nomination, and why I have not opined on Sotomayor, is that the public really doesn’t know who she is or where she stands on important legal issues. This is a concern mostly from the right, but also from pro-abortion activists on the left.

    Sotomayor has few if any significant judicial decisions on many issues, which is not surprising since as a trial judge or appeals court judge she was bound by Supreme Court precedent. To the extent published judicial decisions are important, those decisions are being carefully analyzed, but do not tell the full story of who a nominee will be once confirmed.

    And Sotomayor clearly was someone who protected her record. The most disturbing aspect to me of the 2005 Duke Law School video, in which Sotomayor stated that appeals court judges make policy, was not her words. Those words can be explained away, as I’m sure she will do at the confirmation hearings.

    What troubled me about the video is that when Sotomayor uttered the words, Sotomayor immediately commented on the fact that the panel discussion was being videotaped, and that she really didn’t mean it, or at least knew she shouldn’t say it. The video gives me the impression of a judge who very much understood that one day she may be under scrutiny for a higher office, and that public comments would be fodder for debate.

    Contrary to Sotomayor’s statement when her nomination was announced that she never dreamed of being in this position, I believe that Sotomayor long has expected that this day would come. Certainly the possibility of her nomination to the Supreme Court one day was a topic of objection and discussion when Sotomayor was appointed to the appeals court in 1998. Sotomayor appears to have managed her public comments accordingly.

    There is nothing wrong or disqualifying about such image maintenance; an ambitious judge is not necessarily a bad judge. But we are left to guess, as we did with David Souter, just who Sotomayor is, and how she would rule on the most important issues which affect the country.

    We are entitled to know if there has been a nod and a wink relayed to the White House by intermediaries, as reportedly was the case in the Souter nomination. These nods and winks may not be reliable, as in Souter being touted in private as a conservative, but we are entitled to know.

    Which gets me to the vetting memos and documents. If the memos are routine analyses of Sotomayor’s writings, then there should be nothing to hide. If the memos are vetting of potential problems which ended up not being problems, then there should be nothing to hide. The only things which would be worthy of hiding would be the types of nods and winks which might affect the public debate, or problems the White House hopes will not surface, and it is precisely that type of information which needs to see the light of day.

    Will releasing the vetting memos and documents have a chilling effect on the advice given a President for future nominees? Absolutely. But no more so than the release of the classified interrogation memos will have a chilling effect on the willingness of government lawyers to give advice to the President on matters of life and death in the war on terror.

    If transparency is justified when it comes to national security, then transparency should be good enough for a Supreme Court nomination. Obama would achieve a great deal of change in the way Washington does business if he changed the way the Supreme Court nomination process worked, away from the political gamesmanship and interest-group politics which appears to drive this nomination.

    A good first step would be the release of the Sotomayor vetting memos and documents. That would be change we could believe in.

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    As I said with the discrimination, by you logic, Alito would have the very same issue with discrimination cases.

    You can not have it both ways — admit it also affects Alito if that’s the standard.

    I’m not going to unpack the context and meaning of the “wise Latina” comment, as I said has done a much much better job of analysis from all angles, and also has a more serious discussion than anything here.

    Here’s a quote from Ilya Somin at,

    “Sotomayor May be Wrong About Race, but She is No Racist: Legal commentator Stuart Taylor has a good column criticizing various conservative pundits – including Rush Limbaugh and Newt Gingrich – who accuse Supreme Court nominee Sonia Sotomayor of being a racist.
    Both Taylor and I have been very critical of Judge Sotomayor’s 2001 speech where she claimed that “a wise Latina” judge will generally make better decisions than a white male one, and argued that judges can often legitimately base decisions in part on their racial or ethnic identity. I believe her position is wrong. But it isn’t racist. Sotomayor did not suggest that whites are an inferior race relative to some other group or that they should be denied equal rights or relegated to second-class citizenship. Conservatives often rightly denounce overblown accusations of racism advanced by leftists. For that reason, among others, it is important that they avoid committing the same sin themselves.”

    He has just one opinion on that speech, there are plenty others.

    “J. Woodard” or whatever your name is, since you have been the one driving the comments on this post, your statement that the discussion here is not serious is ironic. And the references to Volokh Conspiracy (a site I like a lot and link to frequently) are equally ironic; can’t you make your own arguments supporting the liberal position without the need to use a conservative law site as cover? I think such tactics qualify as trolling.

    J. Woodward

    And thus you ignore my point completely. She said something that Alito didn’t.

    Did alito say that italian males might have an inherent advantage in judging? She did, vis-a-vis latina women. Did alito say that italian male judges were better, or at least he hoped they were? She did, in reference to latina women.

    Where they are similar is that they both said that their backgrounds affected their reasoning. And I didn’t object to that.

    Finally you cite the VC for the proposition that they don’t think that she is bigoted. That isn’t good enough. The standard under the Federal Code of Conduct for Judges is that she cannot sit in any case in which her impartiality might be reasonably questioned. many, many people have questioned her impartianity when it comes to white males, hispanic women or even discrimination generally.

    Are you going to call all of those people unreasonable?

    Btw, now obama is more or less admitting what she said was indefensible and is claiming instead she had a poor choice of words.

    Which of course coming from a guy who sat for 20 years in a black racist chuch without batting an eyelash, i will take that with all the seriousness it deserves.

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