Bench Memos

The Biden Event

As Ed notes, press accounts of yesterday’s White House Sotomayor Pep Rally with law-enforcement groups quote Vice President Joe Biden as saying “Judge Sotomayor has your back” and ”throughout this nominating process [sic], I know you’ll have her back.” [I think Biden means the “confirmation” process; the “nomination” process was over when the President nominated Judge Sotomayor.]


There are three distinct problems here:


1.  Ethical:  As (liberal) legal ethicist Steven Gillers of NYU pointed out, Biden ”crosses the line when he starts representing to interest groups that she would be voting in their favor.” She is “not there to ‘have their back.’  She’s there to interpret the law . . . .”  But that’s just the problem: The Obama-Biden-Sotomayor view of ”interpreting the law” means ruling in favor of some causes and groups, and against others. They see nothing wrong with judges being “for” certain causes and against others. So nobody at the White House sees anything wrong when, for the first time ever, a White House event with interest groups essentially promising that a Supreme Court nominee, if confirmed, will rule in their favor, and asking them in return to lobby for the nominee.


2.  Substantive:  The whole event was staged to try to counteract a substantive point about Sotomayor’s record: Both on and off the bench, it indicates a self-proclaimed ”liberal” who would hamper law enforcement, who does not apply criminal law fairly and impartially, and who discounts the safety of the public and the merits of the personnel who protect them when her notions of race and identity politics come into play. Sotomayor wrote a shamelessly one-sided memo saying there are no arguments whatsoever that favor capital punishment — only arguments against it, such as “capital punishment is associated with evident racism in our society.” As a prosecutor, she said she had a “problem” pursuing “socioeconomic crimes that could be the product of environment and poverty” and that she found it easier to prosecute “felonies” because “the worst victims of crimes are not general society — i.e. white folks — but minorities themselves.” Does the president think she would like to “rephrase” all these comments, like the “wise Latina” being-a-better-judge comment? 


As a judge, no one wants her to rule reflexively in favor of the police (as Biden outrageously suggests she will do): Only to uphold the law as written in the Constitution, Bill of Rights, and the criminal laws enacted by representatives of the American people. The problem is, she does not do that. For example, Sotomayor has a problem with local police searching for a black suspect when an 77-year-old woman told them that she had been attacked with a knife by a young black male suspect. Chief Judge Walker said this is a “novel” equal protection theory that “would severely impact police protection” of the public. Rulings like this are what force Biden to go out on a limb with his bizarre assurances about how tough on crime Sotomayor will be.    


3.  Disclosure:  The fabled Obama transparency has faltered yet again. Controversial Sotomayor advocacy relating to crime and race issues (as well as others, such as abortion) have not even been disclosed, as called for by her Senate questionnaire. The White House calls the omission of her death-penalty memo “an oversight,” but what about the rest of her record? The Biden pep rally adds just another to the list of items called for by Question 26(c), which calls for disclosure of “representations made by the White House or individuals acting on behalf of the White House” to “any individuals or interest gropus as to how you might rule as a Justice.” Hmm. Sotomayor says there have been none. She’s not aware of White House spokesman Gibbs’s statements relating to abortion, nor of President Obama’s comments to Planned Parenthood, apparently. One wonders if she’ll amend her disclosure if she hears that the vice president made some assurances to certain interest groups at the White House yesterday . . .