Michael Gaynor
"The fierce urgency of now" leads to decisions based on ignorance, not full awareness
By Michael Gaynor
June 8, 2009

Since a United States Supreme Court Justice is NOT term-limited, the United States Senate should NOT allow President Obama to obtain a hasty rubberstamping of his nomination of Judge Sotomayor or Judge Sotomayor to be less than completely forthcoming.

Is President Obama rushing to have Judge Sonia Sotomayor confirmed as a United States Supreme Court Judge?

Like the actual relationship between Obama and ACORN, would the whole truth about a nominee enthusiastically supported by ACORN and La Raza becoming public knowledge present an unacceptable risk of rejection?

Should Judge Sotomayor be held to the same standard of disclosure as other judicial nominations?

Yes, yes and yes.

Facts are "pesky things," as the late President Reagan pointed out.

Were Sotomayor questionnaire omissions deliberate or accidental?

We don't know and we should find out.

On June 4, 2009, the Judicial Confirmation Network, by its Counsel, Wendy E. Long, wrote to the members of the Senate Judiciary Committee regarding "Judge Sonia Sotomayor's Incomplete Senate Questionnaire," as follows:

"A first read through Judge Sonia Sotomayor's U.S. Senate questionnaire for her Supreme Court nomination raises more questions than it answers. It is already clear that she has omitted controversial material from her past in which she asserts that 'c]apital punishment is associated with evident racism in our society' and advocates public opposition to restoring the death penalty in New York state.

"Whatever the immediate cause of this glaring omission, the ultimate blame should be placed squarely at the feet of the White House and its attempt to rush the Senate into an unprepared confirmation hearing that overlooks critical materials. The White House has had a recurring problem in failing adequately to vet nominees. Yet the Obama Administration yesterday touted Sotomayor's questionnaire as having been returned to the Senate more quickly than those for the nominations of Chief Justice Roberts and Justice Alito.

"The submission of a memo that includes details such as unpaid dental bills, yet omits important issues such as activism concerning capital punishment makes one wonder whether this is simply another vetting failure or something more deliberate. In any case, it is clear that the Sotomayor Senate questionnaire is incomplete and unreliable. It must be sent back to her and to the White House, marked 'Return to Sender,' with instructions that it is not to be redelivered to the Senate without complete answers and all required documents.

"The questionnaire submitted yesterday fails to disclose and produce at least one very significant document required under the terms of Question 12(b), which requires Judge Sotomayor to '[s]upply four (4) 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.'

"Judge Sotomayor discloses elsewhere in the memo that from 1980 to 1992 she was a member of the Puerto Rican Legal Defense & Education Fund (PRLDEF), serving in a number of high-ranking positions for the organization. Despite more than a decade of work for the organization, however, she has failed to disclose the sort of documents requested by the questionnaire documents that would give the Senate and the American public a better picture of who Judge Sotomayor is and how she has used her career to advance certain agendas.

"Sotomayor lists on her Senate questionnaire a PRLDEF letter to then-Governor Hugh Carey, 'opposing reinstatement of the death penalty,' dated April 10, 1981. But she fails to list, and does not supply a copy of, a significant policy 'Memorandum' that she signed on behalf of the PRLDEF 'Task Force on the Bill to Restore the Death Penalty in New York State,' dated March 24, 1981.

"All three members of the task force, including Sotomayor, signed the Memorandum, urging the Board of PRLDEF to 'take a public position in opposition to the restoration of the Death Penalty in New York State.'

"The memo signed by Sotomayor makes a number of controversial, unsupported, and badly reasoned assertions about the death penalty, including:

'Capital punishment is associated with evident racism in our society.'

'In the review of the current literature of the past two years, no publications have been found that challenge the evidence and the rationale presented in opposition to the death penalty.'

'The problem of crime and violence in American society is so complex, it is unreasonable to think that capital punishment will result in preventing it or diminishing it.'

'Our present perspective on the meaning of our values in the Judeo-Christian tradition, and the state of humanistic thinking in the world judge capital punishment as a violation of those values.'

'It is counter-productive; we inflict death on the offender to manifest our opposition to his inflicting death on another.'

"It is worth noting that Justice Souter, whose seat on the Supreme Court Judge Sotomayor has been nominated to fill, has never held that the death penalty is unconstitutional per se. Although Justice Souter has voted frequently with the liberal wing of the Court to grant the writ of habeas corpus in death penalty cases, he has evaluated such challenges on a case-by-case basis.

"The Sotomayor memorandum that she withheld from the Senate provides an important data point to flesh out the picture of her that is emerging from her other writings, speeches and judicial opinions: a hard-left liberal judicial activist, much more akin philosophically to Justices William Brennan and Thurgood Marshall, than to Justice Souter, whom she would replace. As a minimum, the memo places her firmly in the Brennan-Marshall line of thinking on the death penalty and race. It is certainly a significant omission from her Senate questionnaire that is clearly called for by the terms of Question 12(b).

"Moreover, Judge Sotomayor was a member of the PRLDEF for 12 years, according to the questionnaire. It is hard to believe that this is the only policy memo she signed, and the Senate questionnaire calls for even more, including reports, memoranda, and policy statements even where she did not sign or contribute to them."

The Free Dictionary: "If you marry someone you do not know well, or decide to marry someone without first carefully considering what you are doing, you will probably regret it for a long time. Sally wanted some time to consider Sam's proposal of marriage; she had heard the saying, 'marry in haste, and repent at leisure.'"

The same advice should apply to President Obama's proposal of Judge Sotomayor, since the issue is whether SHE is suitable, NOT whether there should be another female Justice or the first Hispanic Justice.

Since a United States Supreme Court Justice is NOT term-limited, the United States Senate should NOT allow President Obama to rush it into a hasty rubberstamping of his nomination of Judge Sotomayor or Judge Sotomayor to be less than completely forthcoming.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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