Within the Scope

Blogging on Administrative Law and the Public Sector

Saturday, June 06, 2009

Some Thoughts on the Sotomayor Nomination – Part I

On Thursday of this week, the U.S. Senate’s Committee on the Judiciary posted to the internet Judge Sonia Sotomayor’s replies to the Committee’s background questionnaire. Submission of the questionnaire replies is an important early step as Judge Sotomayor seeks confirmation to become the next Associate Justice of the Supreme Court of the United States.

Two items leaped out to me from the Judge’s detailed replies. The first is that Judge Sotomayor, like all of her would-be colleagues on the High Court, has never been a candidate for elective office. Since Justice Sandra Day O’Connor retired in July of 2005, the High Court has been without a Justice who has ever appeared on a ballot – the first time that this was true in the Court’s long history. And, if Judge Sotomayor is confirmed, this particular trend will continue for a while longer.

The second, more subtle point is that it would probably be very difficult for someone who had a significant tenure in elective office to respond fully to the questionnaire now used by the Judiciary Committee. Imagine the herculean staff effort that would be needed to respond to the Committee’s questions if Governor Christine Gregoire (of Washington), Governor Jennifer Granholm (of Michigan) or Governor Deval Patrick (of Massachusetts) was nominated to the post – any of whom was a genuine possibility last month. Among the Committee’s requests are:

12 (a): List the titles, publishers, and dates of books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited, including material Published only on the Internet. Supply four (4) copies of all published material to the Committee.

....

12 (d): Supply four (4) copies, transcripts, or recordings of all speeches or talks delivered by you, including commencement speeches, remarks, lectures, panel discussions, conferences, political speeches, and question-and-answer sessions. Include the date and place where they were delivered and readily available press reports about the speech or talk. If you do not have a copy of the speech or a transcript or recording of your remarks, give the name and address of the group before whom the speech was given, the date of the speech, and a summary of its subject matter. If you did not speak from a prepared text, furnish a copy of any outline or notes from which you spoke.

12 (e): List all interviews you have given to newspapers, magazines, or other publications, or radio or television stations, providing the dates of these interviews and four (4) copies of the clips or transcripts of these interviews where they are available to you.

12 (f): If, in connection with any public office you have held (see 15a), there were any reports, memoranda, or policy statements prepared or produced with your participation, supply four (4) copies of these materials. Also provide four (4) copies of any resolutions, motions, legislation, nominations, or other matters on which you voted as an elected official, the corresponding votes and minutes, as well as any speeches or statements you made with regard to policy decisions or positions taken. “Participation” includes, but is not limited to, membership in any subcommittee, working group, or other such group, which produced a report, memorandum, or policy statement, even where you did not contribute to it. If any of these materials are not available to you, please give the name of the document, the date of the document, a summary of its subject matter, and where it can be found.
In such a case, would a tractor-trailer stuffed full of bankers boxes be required?

Judge Sotomayor’s more modest set of replies are accessible here and here.