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The Nominee and the Attack Dogs

For slander lives upon succession,
Forever housed where it gets possession.
— Shakespeare, The Comedy of Errors

The worst thing about disclosure of the name of the new Supreme Court nominee was not that the weeks of speculation had come to an end. It was that the public would no longer be treated to the fascinating biographies of every man, woman and child who MIGHT have been nominated by President Obama. These were biographies that, but for the vacancy on the Court, would never have seen the light of day, and the public would forever have been deprived of all the fascinating details about what in many cases were unfascinating lives that the vacancy permitted us to share. Those biographical sketches have now been replaced by bits of trivia about the actual nominee that are at least as fascinating as the biographies of the might-have-beens.

For the first piece of trivia we are indebted to Nicholas Confessore of the New York Times. Mr. Confessore discovered that Judge Sonia Sotomayor “did not cast a ballot in the 2002 election . . . . Nor did she vote in the 2006 elections, which gave Democrats control of the United States Senate.” Her disregard of her civic duty was also evident in the elections of 1999 and 2007. That news suggests (although not stated in the story nor picked up by Rush Limbaugh or Newt Gingrich) that she is not a fan of our form of government. How else to explain her inaction? There is, however, a happy ending to this particular story. She voted in 2008. Since that is the most recent election to have occurred one can hope that this represents her determination to turn over a new leaf and participate in the democratic process. Her failure to vote in other elections should be explored in some depth at her confirmation hearings.

Another observation that has received much attention is that if Judge Sotomayor is confirmed, she will join 5 other Roman Catholics on the Supreme Court thus giving Pope Benedict a significant voice in how the law develops. Although the Pope’s influence is a very real threat, the reassuring news is that she is at most a Casual Catholic. The Washington Post reports that a White House spokesman said, in response to Catholic conscious bloggers’ concerns, that: “Judge Sotomayor . . . attends church for family celebrations and other important events.” That demonstrates a lack of zeal that should comfort critics.

Yet another concern is Judge Sotomayor’s involvement with the Puerto Rican Legal Defense and Education Fund. After she finished law school, then lawyer Sotomayor became a member of the Board of Directors of the Puerto Rican Legal Defense and Education Fund. During her tenure, according to the New York Times, “she played an active role as the defense fund staked out aggressive stances on issues like police brutality, the death penalty and voting rights.” Curt Levey, executive director of Committee for Justice wonders whether as a Justice the judge will know the difference between being a judge and serving on a board. That is probably the same thing he wondered when Sam Alito was nominated.

Judge Alito was a member of the Federalist Society. The Society didn’t go around suing people. It just tried to put its members into Federal judgeships. In an article in the Washington Monthly in March 2000, Jerry Landay, a former correspondent for ABC and CBS news observed that “ The Society’s mission is to advance a conservative agenda by moving the country’s legal establishment to the right and they are succeeding. . . . [T]he Society is accomplishing in the courts what Republicans can’t achieve politically.”

The Puerto Rican Legal Defense Fund could probably not get Justice Antonin Scalia to skip the swearing in of a new Chief Justice of the U.S. Supreme Court so that he could go on a junket with its members, as Justice Scalia did when he skipped Chief Justice Roberts’ swearing-in in order to go to a Colorado resort with members of the Federalist Society.

Whereas Judge Sotomayor discontinued her membership on the board of the Puerto Rican Defense fund upon becoming a judge, Judge Alito continued his membership in the Federalist Society the entire 15-year period during which he sat as a federal judge on the Third Circuit Court of Appeals. He has now resigned. Prior to his appointment to the Court, Chief Justice Roberts said he had no memory of belonging to that organization although he was listed as a member in the 1997-1998 leadership directory of the organization.

It is too late to ask Justice Alito why he didn’t resign sooner or Chief Justice Roberts why he didn’t recall being a member or Justice Scalia why a junket with the Society displaced the common courtesy of being present for the swearing in of the Chief Justice of the court on which he serves. That should not stop senators from in depth questioning of Judge Sotomayor on her membership in the Fund.

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Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at For political commentary see his web page at

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