******************** THIS BLOG HAS MOVED TO WWW.LEGALINSURRECTION.COM ********************

This blog is moving to www.legalinsurrection.com. If you have not been automatically redirected please click on the link.

NEW COMMENTS will NOT be put through and will NOT be transferred to the new website.

Thursday, May 28, 2009

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 al-Qaeda 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.

Follow me on Twitter and Facebook


  1. Pfui.

    Sotomayor is a female Democrat with a Hispanic surname. She would be qualified as an Obama appointee to any post whatever if she had a two-digit IQ and tended to drool and spray spittle when she spoke. Mere credentials as a lawyer and/or jurist are irrelevant.


  2. The comparison of six year-old memos that were no longer policy, that were essentially publically known are not adequate comparisons to a yet to occur SCOTUS process. Further the administration was sued to even bring the information to light. Even if you granted a similarity, the "transparency" you speak of would dictate the release after the event in question.

    The analogy doesn't make sense, as you are sort of reaching for the "it all leads to nuclear war" analogy.

    The "strategy" in the ByBee memos was expired, at least the expiration was used as an argument to avoid the release of the memos.
    In addition, the judicial hearings are the appropriate time for all questions to be answered on the nominees record, personal opinions etc.

    The transparency you are asking for already exists within the existing confirmation process.

    Further, there are ample replacements for pre-hearing analysis, Volokh.com is going through detailed analysis of every piece of Sotomayor's work that is available -- including quantitative analysis comparing Sotomayor's work to other potential nominees. There is also the ABA review. In addition, outfits like the Weekly Standard are going through every bit of private written work Sotomayor has produced, along with anything on tape. Further, given two nomination processes, being on the "short-list" since 1998 and well-funded specialized Judicial groups there should be thousands of pages available to examine. Lastly, there are all the resources of the MSM, Fox News in particular, to go over every detail.

    If the NYT is to be believed in this case two distinct types of memos.

    1.) A single "commissioned a strategy memorandum from Mr. Klain intended to dictate the process. "
    2.) Candidate memorandums in two forms: 10-page prelim, 60-70 page final.

    So, essentially you are asking the WH to give up strategic process information actively in use as well as information that is easily replicated, before the roll out is complete. You compare this to memos that were sued to be made public, and allegedly last used in 2003.

    How would the WH function if every memo would need to be released immediately to prove "transparency?"

    What could have been a good point about transparency comes off as a somewhat awkward partisan take due to the hyperbole present in a faulty analogy.

    (to be cont.)

  3. (cont.)

    "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."

    Why is this a problem?

    As you admit, you do not know Sotomayor well enough to draw conclusions; yet, you make the most politically charged assumptions about someone who may just be a person unwilling to say controversal things -- not everyone is in the mode of Scalia.

    "Will releasing the vetting memos and documents have a chilling effect on the advice given a President for future nominees? Absolutely."


    Given the Bork and Thomas nominations, all SCOTUS nominees are ready to expect their worst to be revealed. And given the availability of Sotomayor's record -- so much of it public record -- there is ample time for all to be published and accounted for in the transparent hearings.

    (In fact, given your assumptions about the "Nork Card" twitter statement, your racial politics post and your post on distortion and hypocrisy, I waited for statements about Newt's twitters on Sotomayor).

    History shows every single questionable action with a paper trail will come out.

    History also shows that both sides care very little about the actual information available along with the media, it's all a game.

    Sotomayor already suffered anonymous attacks from "liberal" sources (the tnr/Rosen piece).

    In addition, the attacks on Obama's "empathy" statement (and the race-gender statements by people opposing Sotomayor), even though now justice Alito said the following:

    Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

    Alito : ...When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

    In addition, Inohfe said of Satamayor "In the months ahead, it will be important for those of us in the U.S. Senate to weigh her qualifications and character as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences."

    Your conclusion reiterates the strained analogy between a national security issue and a Scotus nomination process; however, we now know Gonzales as WHC authorized the techniques before having the now public opinions anyway. (http://www.npr.org/templates/story/story.php?storyId=104350361)

    Your conclusion also shows the false-nature of your request given the ability for the Judicial Commitee in the Senate to conduct transparent hearings, the pre-existing information available and the fact political gamesmanship will occur regardless due to auxillary (left and right) groups who need to raise money and future presidential candidates who need to raise profile to prove bonafides.

    Lastly, one might directly conclude from your analysis would be important to re-examine ByBee's appointment given the lack of candor about his judicial work on national security. By your own analogy, National Security trumps SCOTUS, and thus establishes a hierarchy of importance. So, without ByBee's work on national security his record could not have been adequately judged directly from your definition. (In reading your blog on ByBee, you are wrong about the LA "attack" timeline.)

    So, I'm guessing you will issue an update to urge the immediate re-examination of Bybee's judicial appointment, and support that re-examination given the new work available on national security.

    (P.S. sorry for typos, grammar etc.)

  4. (A personal note that does not need to be published, b/c I'd advise against you continuing the practice in published articles).

    In your article on the boycott of Mormon owned businesses that contributed to the Prop. 8 boycott b/c of guidance from the LDS church, you use "Postings on YouTube of blatantly anti-Mormon videos calling on people to "Boycott the Utah Hate State and the Mormons" (along with dkos and other places online) as evidence of bad general behavior in the use of a boycott strategy.

    As Ric Locke's posting at May 28, 2009 2:15 PM shows the problem with attributing speech about a topic to any cause, organization or individual. Even when you make disclaimer's like: "Although comments are moderated, I accept no responsibility for what other people say, and I reserve the right to block or remove any comment for any reason or no reason."


    "In case you were wondering, all opinions and views expressed on this blog are my own, and do not represent the views of any employer or other organization."

    Given you use "Associate Clinical Professor of Law, Cornell Law School, Ithaca, NY" as an important credential, people could choose to make similar ties of Cornell, yourself and the process of the nomination of Justice Sotomayor to make similar partisan points.

    In particular, b/c you read and approved the comment.

    I do not think that sort of partisan attribution tactic is a fair one; however, it is consistently used by partisans of all stripes to "prove" the "distortion and hypocrisy" and/or the "worst sexual innuendos and mockery."

  5. I'm not going to change my posts because of how someone might distort the comments, or how they may distort my posts. Nice try, I get your "subtext".

  6. "aRic Locke's posting at May 28, 2009 2:15 PM shows the problem with attributing speech about a topic to any cause, organization or individual."

    And why should that be? The comment was more than a bit snarky, but its substance is accurate. I have seen nobody across the blogosphere defending the Sotomayor appointment on the grounds of her wonderful legal acumen and/or scholarship; I have seen a lot of comment to the effect that, as she is a concave Democrat with a Spanish surname, anyone objecting is a racist, misogynist hater defending the White Hegemonic Patriarchy.


  7. mmm, personally i find the now infamous wise latina woman comment more disturbing because, well, doesn't that mean she should have disqualified herself in the Ricci case? Certainly when ruling on the rights of white people claiming discrimination, her comment that a wise latina is more often right than a white male gives at least rational question to her impartiality, which is enough under the canons of judicial conduct to require her to disqualify.

    now, some say that the "i would hope" part gives her just enough of a fig leaf. oh, she was "hoping" latina judges were better, not actually saying they were.

    First, i don't buy it. i think its pretty clear she was talking about her beliefs.

    Second, okay, let's pretend that is true. A useful excercise is to imagine a white guy saying it, so imagine if Sam Alito had said, "I hope white people make better judges than black people." Most people would intuitively realize there is something wrong, there, and what is wrong is that it seems to take his race as his "team" to the exclusion of other "teams." There should only be one "team" on that subject: the American one.

    and anyway, the rules are not that forgiving. all that needs to be raised is a reasonable question. One can reasonably question whether she would be impartial, so she shoud disqualify herself in any case involving:

    1. white males (as a party or attorney);
    2. latina women (as a party or attorney); or
    3. discrimination.

    Of course the natural response after hearing that is to say, "what's left?" and well, that is my point. We would be getting, at best, half a justice, or one sitting in many cases that she should normally recuse herself from.

    There are better candidates than this. Let's find one of them instead. Heck, obama, i won't give you crap if you nominate another hispanic woman. deal?

  8. @Aaron Volokh.com has much better discussion of the lone "latina" statement that seems to cause so much trouble, even though Alito made similar comments in regard to his immigrant background providing him with necessary empathy.

    Take a look, there are good arguments on all sides, and it is quite rigorous discussion.

    Sotomayor v. Alito on judicial record.

    Sotomayor "Latina voice speech"

  9. @Aaron turnabout is fair-play. Since Alito had many of the same comments about his experience, is it fair to say that he should recuse himself when white males are a party?

    "Alito : ...When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."


  10. J. Woodard

    I have read alito's comments. he never said it made him superior to non-italians. And that is the crux of the problem.

    I don't see how this DOESN'T create a reasonable question to her ability to be impartial. And i don't see how any amount of ex-post spin can change that stubborn fact. She should have disqualified herself in Ricci, at the very least.

  11. @Aaron

    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 Volokh.com has done a much much better job of analysis from all angles, and also has a more serious discussion than anything here.

  12. Here's a quote from Ilya Somin at Volokh.com,

    "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.

  13. "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.

  14. 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?

  15. 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.