Release The Sotomayor Memos

posted at 12:15 pm on May 28, 2009 by Legal Insurrection

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.

Cross-posted with updates at Legal Insurrection Blog

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