In a hearing, the legal concept of “relevance” is a dynamic one. If you are going to take the position that some factual area is irrelevant, you must proceed as if it really is of no significance. The White House and Democrats have taken the position that Judge Sotomayor’s tenure with the leftist Puerto Rican Legal Defense and Education Fund is irrelevant to her fitness to serve on the Supreme Court. But that’s not how Senate Democrats are acting.
Plainly, Sotomayor’s PRLDEF tenure is extremely relevant. It consumed 12 years of her professional life. She has described her role there as “Member and Vice President, Board of Directors Chairperson, Litigation and Education Committees.” As Jen Rubin recounted at Contentions, the New York Times detailed that “Ms. Sotomayor was an involved and ardent supporter of their various legal efforts during her time with the group” — legal efforts that included “aggressive stances on issues like police brutality, the death penalty and voting rights” (as well as abortion — and work with ACORN).
That would be highly relevant even if Democrats had not, during the Alito confirmation hearings, taken the position that documents from the “Concerned Alumni of Princeton” were crucial, and even if Democrats hadn’t derailed Miguel Estrada’s nomination, in part, by complaining about the refusal of the Bush administration to produce some memoranda from Estrada’s time at the Justice Department.
Yet, though the PRLDEF has hundreds of boxes of materials from Sotomayor’s time there, Sen. Jeff Sessions argued a few days ago that very little of it has been produced. As CQ reported:
PRLDEF has reviewed only three of more than 300 boxes of materials, and from that we have received only 300 pages of documents. This is unacceptable,” Sessions said. “Rather than simply defend PRLDEF, the White House should respect the Judiciary Committee’s important bipartisan request that these documents be delivered to the committee in a timely manner so they can be reviewed before Judge Sotomayor’s hearing.
In the course of the hearing so far, Sotomayor has postured as if she and the PRLDEF had nothing to do with each other — that she didn’t review briefs or get involved in the group’s legal stances. And now, as Ed just pointed out at Bench Memos, Sen. Sheldon Whitehouse has attempted to rehabilitate her on this dubious testimony, taking pains to minimize Sotomayor’s role.
Democrats shouldn’t be allowed to have it both ways. If the PRLDEF is relevant enough for Democrats to elicit testimony about, then it’s relevant enough for Republicans to press hard to get the pertinent documents and time to review them. In a legal trial — which is far less important than vetting a nominee for a lifetime appointment on the nation’s highest court — a judge in such a situation would routinely order the disclosure of the relevant documents and grant an adjournment so they could be reviewed; otherwise, disclosure is not meaningful or consistent with due process. Why should less than that be acceptable here?