Senators Urged to Probe Sotomayor on Proper Role of Impartial Courts

A national court-advocacy group has called on U.S. senators to pose
10 questions to Supreme Court nominee Sonia Sotomayor, to gauge her
views on insulating courts from "inappropriate political influence."

In a June 19 letter to the Senate Judiciary Committee, the Justice
at Stake Campaign said the questions "will help Americans to understand
Judge Sotomayor's perspective on the significance of a fair and
impartial judiciary. We encourage you to bring these pertinent issues
to the public's attention."

The list of questions includes general queries about Sotomayor's
attitudes on the separation of powers, judicial impartiality and the
importance of an independent judiciary. It also cites cases Sotomayor
and other judges have faced, to gauge her attitudes on when a judge
should avoid a case to prevent ethical conflict; the right to bail
during certain immigration proceedings; judicial discretion in
sentencing; and FBI investigative powers under the Patriot Act.

The Judiciary Committee is scheduled to begin hearings on
Sotomayor's nomination July 13. Justice at Stake is a nonpartisan
national partnership that works to protect courts from special interest
and partisan pressure.

"The confirmation process is a unique opportunity to urge nominees
to educate the public on the importance of courts that are fair,
impartial and independent," said Bert Brandenburg, executive director
of Justice at Stake. "These questions, like many others being submitted
to senators, stand in contrast to recent trends in state judicial
elections, where questionnaires are sometimes used to threaten ballot
box retribution if judges don't rule on behalf of interest group
agendas."

Excerpts from the letter and the full questionnaire are as follows:

June 19, 2009

The Honorable [NAME] Committee on the Judiciary United States Senate [ADDRESS]

Dear [NAME]:

As the U.S. Senate prepares to consider the nomination of Judge
Sonia Sotomayor to the Supreme Court of the United States, Justice at
Stake is pleased to offer ideas for questions that could help
illuminate the nominee's views on an increasingly important public
policy issue - protecting the integrity of our courts from
inappropriate political influence. We believe that this nomination
offers a tremendous opportunity to educate Americans about the
importance of a fair and impartial judiciary.

Justice at Stake is a national, nonpartisan partnership of more than
50 organizations working to keep courts fair and impartial through
citizen education, civic engagement and reform. We have built a
coalition to help Americans protect the courts that protect their
rights, shield our courts and judges from excessive partisan pressure,
and reduce the power of money and special interests over the judicial
selection process. Justice at Stake does not endorse or oppose specific
nominees or candidates.

We think the following ten questions will help Americans to
understand Judge Sotomayor's perspective on the significance of a fair
and impartial judiciary. We encourage you to bring these pertinent
issues to the public's attention by asking the following:

1. What conditions do you think characterize a fair and impartial
   judiciary? How important is such an institution to the functioning of
   our democracy? What principles guide you to fairly and impartially
   apply the law as a judge?
2. The Supreme Court recently ruled in Caperton v. Massey
   that the Due Process Clause of the Fourteenth Amendment sometimes
   requires judges to recuse themselves in cases where they have received
   a significant amount of campaign support from a party in a pending
   case. In your answers to the questionnaire for this committee you
   informed us that you have recused yourself well over 100 times for a
   variety of reasons. Can you explain to us your own thinking regarding
   when and why you will remove yourself from a case? What
   disqualification standards should Americans expect from their Supreme
   Court justices?
3. Can you share some of your views regarding the separation of powers
   among the three branches of government? What is your philosophy on the
   proper role of the judiciary as a check on the executive and the
   legislature? What principles would guide you in cases before the
   Supreme Court?
4. What criteria should the Congress use in applying its
   Constitutional power to impeach a federal judge? What norms should be
   used to balance the need for accountability with the need to insulate
   judges from improper political pressure?
5. In a 2007 case entitled Kraham v. Lippman, 478 F.3d 502
   (2d Cir. 2007), you held that a judicial rule preventing leaders of
   political parties, their families, or their law firms from receiving
   appointments to state courts did not violate the First Amendment right
   to freedom of association. You wrote that the rule "further[ed] the
   rational and legitimate goal of eliminating corrupt court appointments"
   and that the interest in "protecting the integrity and the appearance
   of integrity" of the courts was "not merely legitimate, but
   compelling." Can you expand upon your view of the importance of a fair
   and impartial court system in our democracy?
6. During his confirmation hearing, Chief Justice John Roberts opined
   that "Judges are like umpires. Umpires don't make the rules; they apply
   them." Do you agree with this view? Why or why not?
7. In Elkimiya v. DHS, 484 F.3d 151 (2d Cir. 2007), you held
   that an applicant for lawful permanent residence in the United States
   could apply for bail from detention, though you denied the petitioner
   the privilege in that case. Others have disagreed with your decision
   on the general right to apply for bail, reasoning that the REAL ID act
   had given the Attorney General the unreviewable authority to release or
   detain applicants for asylum. See e.g., Bolante v. Keisler,
   506 F.3d 618 (2007). How important do you think access to the court
   system is in our system of government? In what ways do you believe the
   constitution ensures access to the court system for non-citizens?
8. In a recent case, U.S. v. Cavera, 550 F.3d 180 (2d Cir.
   2008), you wrote an opinion dissenting in part. You said that
   "arbitrary and subjective considerations, such as a judge's feelings
   about a particular type of crime, should not form the basis of a
   sentence ...[y]et a serious danger exists that sentencing judges will
   dress their subjective views in objective trappings ... . We only
   encourage [...] confusion if we signal that our review is arbitrary." 550
   F.3d at 219. As a former assistant district attorney and federal
   sentencing judge, you have particular experience with the need to
   balance judicial discretion in particular cases with standard
   guidelines and appellate review of lower court decisions. Can you share
   with us your
   philosophy about the proper role of judicial discretion in federal
   sentencing?
9. You recently joined a unanimous opinion in John Doe Inc. v. Mukasey,
   549 F.3d 861 (2d Cir. 2008), that invalidated portions of the PATRIOT
   Act giving FBI agents the authority to release so-called "gag-orders"
   without judicial approval. What do you think the specific role of the
   judiciary ought to be in protecting civil liberties from potential
   government overreach?
10. Two of the cases among those you consider your most significant opinions involved protecting First Amendment rights. In United States v. Quattrone,
    402 F.3d 304 (2nd Cir. 2005), you maintained the right of the press to
    release the names of jurors in an open courtroom, and in Ford v. McGinnis,
    352 F.3d 582 (2d Cir. 2003), you sided with a prisoner's right to
    celebrate a religious holiday he deemed subjectively important. In
    light of these cases, what is your view on the role of the courts in
    upholding constitutional rights and the rule of law?

Sincerely,

Bert Brandenburg
Executive Director
Justice at Stake

Deanna Dawson
Director of Federal Affairs
Justice at Stake