Sotomayor updates ...

Great work being done here: http://bench.nationalreview.com/


Sotomayor's Second Try [Wendy Long]

JCN has reviewed Judge Sotomayor's second crack at responding to the Senate Judiciary Committee's questionnaire. Given the continued omissions in her responses, one begins to wonder if she cannot follow instructions or simply does not care to.

We've addressed some of these problems in a letter to senators with a copy to Greg Craig, White House counsel.

Here's the letter, at our JCN website.


Judge Sotomayor and the Belizean Grove [Ed Whelan]

As the New York Times reported yesterday, Judge Sotomayor has informed the Senate that (in NYT’s phrasing) the Belizean Grove, the “all-female networking club” she belongs to, “did not discriminate in an inappropriate way.”

I don’t have a settled position on what rules ought to govern a judge’s membership in a men-only or women-only club (or on the broader question of what public policy towards such clubs ought to be). On the one hand, I’m generally inclined to favor a genuine diversity in which men and women would have choices among single-sex and men-and-women clubs. On the other hand, I recognize that, deliberately or otherwise, some men-only clubs may operate to deprive women of unique or important opportunities for networking and advancement in the business world. My impression is that that problem is far less common than it was 25 or 30 years ago, largely because so many business-related clubs that were previously men-only have chosen to open, or been forced to open, to women.

Whatever debate there might be over what the rules ought to be, there should be little dispute that judges ought to comply with the rules that are actually in effect. Let’s consider whether Judge Sotomayor has complied with Canon 2C of the Code of Conduct for United States Judges. Canon 2C states: “A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” The commentary to Canon 2C provides this additional guidance:

Whether an organization practices invidious discrimination is often a complex question to which judges should be sensitive. The answer cannot be determined from a mere examination of an organization's current membership rolls but rather depends on how the organization selects members and other relevant factors, such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members, or that it is in fact and effect an intimate, purely private organization whose membership limitations could not be constitutionally prohibited. See New York State Club Ass'n. Inc. v. City of New York, 487 U.S. 1, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 107 S. Ct. 1940, 95 L. Ed. 2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). Other relevant factors include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members. Thus the mere absence of diverse membership does not by itself demonstrate a violation unless reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination. Absent such factors, an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex, or national origin persons who would otherwise be admitted to membership.

I’m certainly not going to contend that this guidance is crystal-clear. But my initial take is that none of the factors that would tend to excuse discrimination on the basis of sex are present in the case of the Belizean Grove. Judge Sotomayor contends only:

Men are involved in its [the Belizean Grove’s] activities—they participate in trips, host events, and speak at functions—but to the best of my knowledge, a man has never asked to be considered for membership. It is also my understanding that all interested individuals are duly considered by the membership committee.

As Jennifer Rubin points out, the “we let the guys come to party” defense “is reminiscent of the ‘we let women be social members’ excuses that exclusive men’s clubs routinely gave for decades—and which were scorned by women’s groups.” Further:

[T]he line about “no one ever asking to join” is rich. Certainly if one declares the organization to be “all men” or “all white” or “all anything” those not in the “all” group are going to be dissuaded from seeking membership. Isn’t the mere statement of exclusivity enough to raise concerns?

It would therefore seem that the default rule set forth in the last sentence of the commentary to Canon 2C (which I have italicized) presumptively applies. It’s also worth noting that Judge Sotomayor, before becoming a member of the Belizean Grove, could have requested that the Committee on Codes of Conduct provide her a confidential advisory opinion about the propriety of membership.

I won’t claim that Sotomayor’s membership in the Belizean Grove is itself a matter of any concern to me. But her apparent violation of Canon 2C and her readiness to rationalize her own participation in reverse discrimination tie into broader concerns about her impartiality.

Further, what’s sauce for the goose ought to be sauce for the gander. In that regard, I’ll highlight Jeffrey Lord’s essay on Judge Brooks Smith’s confirmation travails (“Pat Leahy’s Fish Story”), which discusses how Senate Democrats in 2002 went into conniptions over Smith’s former membership in an all-male fishing club.


Re: Judge Sotomayor and the Belizean Grove [Matthew J. Franck]

Michael Kinsley has some choice words for Judge Sotomayor's explanation that it "did not discriminate in an inappropriate way":

If Obama had nominated a man who was a member of the Bohemian Grove, that would be a big issue and probably a fatal one. So how is it different if Sotomayor is a member of a club set up specifically to be the female equivalent? Rather than try to answer this question honestly, Sotomayor chose to make the preposterous argument that the Belizean Grove isn't a women's club. It's just that no men have ever applied for membership, you see. White clubs used to explain the absence of black members the same way. It's a laughable argument—a brazen whopper—and an insult to the citizenry and the Senate that must confirm her.

The rest is pretty good too.


Belizean Grove: More Double Standards, More Double Talk [Wendy Long]

Thank goodness. Michael Kinsley hits the nail on the head this morning in the Washington Post about Sonia Sotomayor's membership in a discriminatory women's club:

If Obama had nominated a man who was a member of the Bohemian Grove, that would be a big issue and probably a fatal one. So how is it different if Sotomayor is a member of a club set up specifically to be the female equivalent? Rather than try to answer this question honestly, Sotomayor chose to make the preposterous argument that the Belizean Grove isn't a women's club. It's just that no men have ever applied for membership, you see. White clubs used to explain the absence of black members the same way. It's a laughable argument — a brazen whopper — and an insult to the citizenry and the Senate that must confirm her.

My husband is a member of an all-male club that has an excessive devotion to pigs and where the men put their shod feet on the table at dinner. I have enough trouble keeping my tablecloth clean and do not mind being excluded from such a Club. But it would not occur to me (or, I should think, other women) to "ask to be considered for membership" when membership is plainly not open to women. Just as I don't mind my husband's club excluding women, I don't mind Judge Sotomayor's club excluding men.

But Judge Sotomayor minds very much when others discriminate, particularly against women. What is objectionable is her absurd contention that her club's discrimination is not discrimination because "a man has never asked to be considered for membership."

That calls to mind the opinion of the district court in the Ricci case, which was embraced by Sotomayor, that the City of New Haven didn't discriminate against anyone, because no one was promoted. See, everyone was treated equally!

That kind of "whopper," as Kinsley appropriately calls it, causes rational people of goodwill to scratch their heads and say, "Huh?"

The White House and Judge Sotomayor have been selling “up is down” this entire nomination, and now we are supposed to believe that an all-women group, specifically designed (as stated in its mission) as a mirror of the Bohemian Grove, is not the mirror the Bohemian Grove.

Just like “Latina woman” was a slip of the tongue. Then we find out the "slip" occurred regularly over 13 years.

Just like, apparently, "The dog ate my PRLDF files.” But some of them, still not produced to the Senate, are public records.

The White House assures pro-abortion groups that Sotomayor is with them. Joe Biden tells law-enforcement groups that the Judge has "got your back." But the White House has given no "assurances" to anyone about how she'll vote as a Supreme Court Justice.

Come again?

Frankly, I don’t have a problem with her Belizean membership. I suspect, like most Americans, I have a problem with the duplicity and hypocrisy that permeate this White House and this nominee.

This is just the typical liberal "do as I say, not as I do" double standard that leads her to implement gender, race, and ethnic quotas for the rest of the world, when, as Investor's Business Daily has noted, for example, she apparently hires law clerks under different standards than she would impose upon the society at large.