How Republicans missed their chance with Sotomayor
By: Byron York
Chief Political Correspondent
07/16/09 7:41 AM EDT
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| Sen. Orrin Hatch and Sen. Jeff Sessions (Getty Images) |
Republicans on the Senate Judiciary Committee are down to their last chance to make the case that there are serious questions about Sonia Sotomayor's fitness for the Supreme Court. One of the things they will do is stress a subject they have inexplicably downplayed so far: Sotomayor's 12 years of service on the board of the Puerto Rican Legal Defense and Education fund.
In the her first two days of testimony, Sotomayor appeared reluctant do discuss her time with PRLDEF (commonly referred to as "Pearl-Def"). When questioned about it by Republican Sen. Lindsey Graham on Tuesday, she minimized her role in the organization, especially when Graham asked about a PRLDEF lawsuit that compared the denial of taxpayer-funded abortions to slavery.
"How long were you a member of that organization?" asked Graham.
"Nearly 12 years," said Sotomayor.
"During that time, you were involved in litigation matters, is that correct?"
"The fund was involved in litigations, I was a board member of the fund."
"Are you familiar with the position that the fund took regarding taxpayer-funded abortion? The briefs they filed?"
"No, I never reviewed those briefs."
Graham explained the abortion lawsuit, and Sotomayor again said, "I wasn't aware of what was said in those briefs."
"In an organization like PRLDF," Sotomayor explained, "a board member's main responsibility is to fundraise. And I'm sure that a review of the board meetings would show that that's what we spent most of our time on. To the extent that we looked at the organization's legal work, it was to ensure that it was consistent with the broad mission statement of the fund."
After Sotomayor's testimony, Republican aides compared her words with the (incomplete) records they received from PRLDEF. Sotomayor was not only on the board from 1980 to 1992, she was on PRLDEF's litigation committee for eight of those years, and chairman of the litigation committee for four. According to those internal PRLDEF documents, pursuing lawsuits was the organization's primary activity; it was listed first in the group's mission statement. And the papers contain evidence that Sotomayor, who of course brought a legal background to the job, was closely involved in PRLDEF's litigation.
The work of the litigation committee, according to a November 1985 PRLDEF organization document, was to "review docket of current litigation" and "explore areas of potential litigation and set priorities for the Fund for the year." In board minutes from April 1987, Sotomayor is said to have reported to the board, "reviewing and recommending a litigation program." In minutes from October of that same year, Sotomayor is said to have "summarized the activities of the [litigation] committee over the over the last several months, which included the review of the litigation efforts of the past and present and initial exploration of potential area of emphasis."
In a report Sotomayor produced for the board in January 1988, she went through the details of PRLDEF's then-current cases. For example, in one of them, Hispanic Society of the Department of Sanitation vs. N.Y.C. Department of Sanitation, she reported on the Fund's efforts to prove that a promotion test at the New York Department of Sanitation had a disparate impact on Hispanic workers. (Those workers made up 5.2 percent of the people who took the test, and 3.8 percent of those who passed, which Sotomayor concluded "strongly shows disparate impact.") Sotomayor's report also included the details of many other PRLDEF lawsuits.
The point, Republicans say, is that Sotomayor was far more closely involved in PRLDEF's litigation than she has suggested; she did much more than raise money for PRLDEF. On Wednesday, Sen. Jeff Sessions, the ranking Republican on the committee, brought up Sotomayor's testimony of the previous day. "In response to Senator Graham's question, you say you'd never seen any briefs, and that the main focus of your work at the organization was fundraising. Is that accurate?" Sessions asked.
"When I was responding to the senator, I was talking about the board in general," Sotomayor responded. "I belonged to many committees, and so I did other things besides fundraising…clearly board members serve other functions in an organization."
Sessions then read from the PRLDEF minutes and records showing Sotomayor kept close tabs on the organization's litigation. "Isn't that true that you were more active than you may have suggested to Senator Graham yesterday?" Sessions asked.
"No," Sotomayor answered. "Because as I said -- I started to describe the role of the board generally, and we were not addressing the question of what I did or how I participated."
But Graham had asked precisely whether Sotomayor was "involved in litigation matters." And Sotomayor left the impression that she wasn't involved in such issues. As for the January 1988 memo surveying the state of PRLDEF litigation, Sotomayor told Sessions that it "has to be examined in context." It was prepared for PRLDEF retreat to consider the organization's future direction, she said: "It wasn't a review of each individual case to judge its merits."
At that point, Sessions' questioning time ran out; he had waited until the end of his 20-minute period to bring up PRLDEF.
The reason Sotomayor's work at PRLDEF is important, Republicans say, is that it shows a period in her career in which she put into action the ideas she expressed in her "wise Latina" and other speeches. At PRLDEF, Sotomayor was a liberal activist, not the careful, conservative, law-bound judge she has portrayed herself to be at her hearing. Her PRLDEF years -- she left the group when she became a federal judge in 1992 -- show a different Sonia Sotomayor than the one sitting before the committee.
Why didn't Republicans explore the PRLDEF connection more thoroughly? No one seems to know. There are seven GOP senators on the committee. Each is experienced, and each has his own areas of interest. They do not coordinate their questioning with one another. So several of them spent a great deal of time discussing the "wise Latina" speech without spending much time on how Sotomayor's world view translated into action in her career. In some ways, Sotomayor's time at PRLDEF is the link between her personal views and her legal work. A close exploration of her PRLDEF years could help explain, for example, why she gave such short shrift to the Ricci case, in which she summarily denied the rights of a group of white firefighters who had earned promotions in a testing situation reminiscent of the ones PRLDEF and Sotomayor had challenged in the past.
Republicans had a chance to explore these issues with Sotomayor in the early, high-profile moments of her hearing. They missed it.
