Obstruction 101: First Manufacture A Controversy

SotomayorCribbing from a press release by the right-wing Judicial Confirmation Network (JCN), Republicans on the Senate Judiciary Committee drafted a letter claiming that Judge Sonia Sotomayor failed to disclose important information they need to evaluate her record. But the letter’s spurious claims reveal a whole lot more about the right’s obstructionist strategy that it does about Sotomayor:

  • Dwelling on Trivialities: The letter is riddled with claims that trivial discrepancies or omissions place a cloud over Sotomayor. At one point, for example, it claims that Sotomayor has not been consistent because she answered one question by stating she was a “vice president” of an organization’s board, and answers another by stating that she was “First Vice President” of the same organization. At another point, the letter claims that Sotomayor is hiding her views on the death penalty because she failed to disclose a 1981 internal memo she wrote to the board of an organization she belonged to, even though she disclosed a 1981 letter which uses language which is virtually identical to that in the memo. The letter does not explain why such trivialities are required to evaluate Sotomayor’s record.
  • A Double Standard: The letter claims that Sotomayor has “not provided any copies of materials” from two publications that Sotomayor edited in law school, and demands that Sotomayor provide copies of all the articles she edited while working on those publications. Both of George W. Bush’s nominees to the Supreme Court, Chief Justice Roberts and Justice Alito, however, edited journals when they were in law school, but neither Roberts nor Alito disclosed which specific articles they edited while they were law students. The letter provides no explanation why President Obama’s nominee should be held to a higher standard than President Bush’s.
  • Change the Rules Midstream: The Judiciary Committee’s questionnaire asks Sotomayor to disclose all of her “Published Writings and Public Statements,” including any “report, memoranda, or policy statements” which she published, but the GOP letter now wants her to disclose the 1981 internal memorandum on the death penalty. Similarly, the letter questions Sotomayor’s decision not to disclose confidential “internal court deliberations” which “are not available for public dissemination.” Even assuming that Senate Republicans may properly demand confidential records from an independent judiciary, the letter provides no explanation why Sotomayor must make additional disclosures beyond those originally requested by the questionnaire.
  • A Wild Goose Chase: The questionnaire asks Sotomayor to disclose the cases that she tried to a verdict or final judgment while in private practice, as part of her answer she indicates that “[t]he Manhattan District Attorney’s Office is searching its records” for information on several of the routine criminal cases she handled from 1979 until 1984. The letter does not explain why Senate Republicans need to know the details of routine prosecutions she conducted three decades ago, and it is likely that records of these long-forgotten cases no longer exist. Nevertheless, the GOP letter claims that Senators need these records before they can consider Sotomayor’s nomination, and it demands that Sotomayor engage in a similar wild goose chase to track down other decades-old documents that court officials still have been unable to locate.

The bottom line is this: Judge Sotomayor provided a stunningly detailed record of her career to the Senate. Indeed her 173 page questionnaire and 130 page appendix far exceed the level of disclosure that was required by either of George Bush’s nominees. Roberts’ questionnaire was 83 pages long; Alito’s a mere 64. If conservatives want to claim that Sotomayor’s confirmation should be obstructed, they need to fabricate a more believable controversy.