Bench Memos

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White House Counsel’s Office Fiction Piece


Late Tuesday, it came to light that the White House Counsel’s office had produced a memo and given it to Republican Senators as Judge Sonia Sotomayor made her first round of courtesy calls in the Senate.

The novella, entitled “Sonia Sotomayor:  A Nonideological and Restrained Judge,” tried to spin Judge Sotomayor as a proponent of judicial restraint:  essentially, to present her as another Chief Justice Roberts or Justice Alito.

The memo is laughable.  Even Judge Sotomayor’s liberal-interest-group supporters obviously don’t take it seriously or they would be shutting down the White House switchboard with calls of outrage.  It reflects the growing arrogance of a White House that thinks it can say anything it wants, even if the statements bear no relation to the facts.  The Obama White House seems to think it can fool all of the people, all of the time.

The memo quotes from Sotomayor’s 1998 Senate questionnaire submitted for her Second Circuit nomination, touting it as expressing “the importance of judicial restraint.”  Prepared remarks submitted to Senators cannot erase the mountain of contrary evidence in Sotomayor’s speeches, writings, and judicial opinions that indicate she, like President Obama, thinks it is appropriate, and indeed a positive good, for judges to decide cases based upon their own personal characteristics, experiences, political views and biases.

Judicial restraint is the polar opposite of this: It says that judge’s personal views and characteristics must be set aside in order for a judge to rule impartially based upon the law alone.  Sotomayor has actually denied that this is even possible.

The memo also claims that on the Second Circuit she has “developed a record as a moderate who agrees with her conservative colleagues far more frequently than she disagrees with them.”

As proof of this, the memo states:  “Since joining the Second Circuit, she has participated in 434 published panel decisions where the panel included at least one judge appointed by a Republican president.  In those cases, she agreed with the result favored by the Republican appointees in 413 cases – 95% of the time.” 

It appears that the White House counsel’s office did not keep the files from Senator Obama’s office, specifically his public explanation of why he voted against Chief Justice Roberts.  Obama said that “while adherence to legal precedent and rules of statutory or constitutional construction will dispost of 95% of the cases that come before the court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95% of the cases – what matters on the Supreme Court is those 5% of cases that are truly difficult.”

Putting aside that the 95% figure trivializes the serious differences in the two very approaches to judging, the 95% of cases the White House refers to now as its proof point are the same 95% that Senator Obama – and Candidate Obama – referred to as irrelevant.

I very much doubt that any of the intended audience of this memo – GOP Senators – will buy into this fantasy that Sonia Sotomayor is a proponent of judicial restraint.  They remember that their old Senate colleague, Barack Obama, tried to filibuster Justice Sam Alito, and voted against both Alito and Chief Justice John Roberts, precisely because that was their approach to the law.  Obama explicitly rejected judicial restraint during his presidential campaign.  Now asks for Republican Senators’ votes on the pretense that he has picked a nominee who practices it?

What is really troubling is the snow job that the White House is attempting on the American people, who deserve an honest airing of the differences between the Obama-Sotomayor view of the law and the Roberts-Alito-Scalia-Thomas approach to the Constitution and the role of the Court.  If President Obama kept his promise of transparency, there would be an enlightening public debate about the proper role of a judge in our constitutional system, like the debate that started in the 1980s between Justice William Brennan and Attorney General Edwin Meese.  It is the same debate at issue today, and it is a debate worth having.  The American people deserve to have these issues made crisp, to evaluate the competing philosophies — not to be deceived and double-talked into thinking there is no difference between Obama Supreme Court nominees and the Justices who practice judicial restraint.  That is not transparency, it is cynical manipulation.



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