The Democratic smoke grenades were billowing all over the third day of the Sonia Sotomayor confirmation hearings yesterday. Democrats continued to portray Sotomayor as a judicial conservative, which is reminiscent of John Kerry’s presidential campaign. Remember former altar boy Kerry’s stand on abortion?
Nevertheless, Republicans kept chipping away at Sotomaoyor’s Teflon coat, exposing bits and pieces of her real — and quite radical — approach to the Constitution and the law.
Sen. Jeff Sessions (R-Ala.) queried Sotomayor about her12 years of work with the Puerto Rican Legal Defense and Education Fund (PRLDEF). Sen. Lindsey Graham (R-S.C.) had extracted one of a few clear statements from the nominee regarding PRLDEF on Tuesday:
SEN. LINDSEY GRAHAM: Are you familiar with the position that the fund took regarding taxpayer-funded abortion? The briefs they filed?
JUDGE SONIA SOTOMAYOR: No, I never reviewed those briefs…In a small organization as the Puerto Rican Legal Defense Fund was back then, it wasn’t the size of other legal defense funds, like the NAACP Legal Defense Fund, or the Mexican-American Legal Defense Fund, which are organizations that undertook very similar work to PRLDF…In an organization like PRLDF, a board member’s main responsibility is to fundraise.
In a July 2nd letter to Sessions from the nominee, Sotomayor revealed the different positions she held over her 12 year tenure at PRLDEF:
• Member of the Board of Directors: 1980-1992
• Education and Professional Development Committee: 1980
• Nominations Committee: 1980, 1981, 1982, 1985, 1986, 1987, and 1990
• Litigation Committee: 1981, 1982, 1983, 1984, 1986, 1987, 1988, and 1991
• Chairperson of the Litigation Committee: 1983, 1984, 1987, and 1988
• Executive Committee: 1982, 1984, 1985, 1986, 1987, 1988
• Treasurer: 1982
• Special Vice Chair of the Board: 1984, 1985
• Second Vice Chair of the Board: 1986
• First Vice Chair of the Board: 1987, 1988
• Finance Committee: 1986, 1987, 1988
• Personnel Committee: 1988
That covers a lot of years and a range of capacities that are shrouded in secrecy in these hearings. The White House has suppressed hundreds of boxes of documents covering Sotomayor’s work at PRLDEF. They claim the documents are irrelevant to the nomination.
When Sen. Sessions confronted her with documentation contradicting her statements, Sotomayor answered as she did with every other answer she offers: it’s all about context. Not one line taken out of context, mind you, but entire speeches, court decisions and PRLDEF board minutes.
SEN. JEFF SESSIONS: “Isn’t that true that you were more active than you may have suggested to Senator Graham yesterday?”
JUDGE SONIA SOTOMAYOR: “…That memo has to be examined in context. The memo was a moment in our 12-year history where the board was planning a retreat. To think about what directions, if any, we should consider moving into or not. We were not reviewing the individual cases to see if the individual cases, what positions were taken, the type of strategies…
From only 300 pages Republicans were able to obtain of the over 300 boxes of contemporaneous documents, there were ample references that refute the nominee’s claims that her duties were mainly fundraising.
March 25, 1981 Litigation Committee meeting minutes of a committee meeting Sotomayor attended, stated: “The Committee was provided copies of the Fund’s Docket of Cases . . .”
The minutes also state: “There was a discussion regarding possible new issues that could be addressed by the Fund,” and “The Board also unanimously resolved to request the Staff to examine what legal avenues might be available to challenge the cuts in federal entitlements.”
These minutes clearly show discussions of legal strategies. In fact, in 1987 when she was the Chair of the Litigation Committee, Sotomayor was responsible for reviewing current litigation.
In a November 11, 1985 PRLDEF report obtained by the Senate Judiciary Committee, the responsibilities of the Litigation Committee were outlined and included: “(1) Review[ing] docket of current litigation; (2) Explor[ing] areas of potential litigation and set[ting] priorities for the Fund for the year.”
The documents include Litigation Committee minutes that confirm Sotomayor routinely briefed the committee on the status of litigation:
In October 8, 1987 PRLDEF board minutes: “Chairperson Sotomayor summarized the activities of the Committee over the last several months which included the review of the litigation efforts of the past and present…”
On January 14, 1988, “Committee Chairperson Sonia Sotomayor reviewed the scope of the Committee’s work and indicated a fuller report would be presented at the upcoming Board meeting.”
These and other documents clearly show that the nominee had a much more extensive role than she indicated. Sotomayor was not only integrally involved but led PRLDEF litigation efforts to offer or deny promotions to city workers based solely on race — which clears up some of the confusion over her actions in Ricci v. DeStefano, the controversial New Haven firefighters’ racial discrimination case.
In Hispanic Society of the Department of Sanitation v. N.Y.C. Dep’t of Sanitation, PRLDEF represented the plaintiffs “in regard to a claim that the Supervisor Examination has a severe disparate impact upon Hispanic test-takers.” PRLDEF claimed that “Hispanics comprised 5.2% of the test-takers and only 3.8% of the passers[.]”
In Hispanic Society v. New York City Police Department, PRLDEF represented Hispanic police officers “challenging the examination of sergeant in the New York City Police Department as discriminatory and not job related.” The settlement “provid[ed] for positions of sergeant consistent with the percentage of Hispanic test-takers.” PRLDEF used this litigation effort to force an employer to institute a quota-based hiring scheme.
On July 2, 2009, the Wall Street Journal reported on this litigation: “In one case against the New York City Police Department, ‘we obtained quota promotions for Latinos and African Americans to the rank of sergeant,’ the group said in a May 1992 report.”
In Hispanic Police Society v. New York City Civil Service Commission, PRLDEF represented the plaintiffs in a “Title VII employment discrimination case challenging the validity of the examination for lieutenant in the New York City Police Department.” The settlement allowed “plaintiffs the opportunity to participate in the preparation of a new lieutenants test.” PRLDEF used this litigation to invalidate a standardized test.
In Guardians Association v. New York City Civil Service Commission, PRLDEF challenged “seven examinations for police officers given from 1968 through 1970.” After successful litigation and subsequent appeals, “Hispanic and Black police officers who sat for the challenged examinations are entitled to at least the median date of appointment from those examinations as well as back pay.”
PRLDEF had argued that the “conclusion that proof of discriminatory impact is insufficient to establish a prima facie case of discrimination in employment ignores the language of the statute, the legislative history, and the agency regulations . . .”
This glimpse at some of the more disturbing evidence strongly suggests that Sotomayor may not be the impartial jurist she plays on TV.
Perhaps it’s all been taken out of context.