Sotomayor's Take-Home Tests

Judge Sonia Sotomayor responded to written questions from five GOPers on the Senate Judiciary Cmte today, but she rarely expanded on the details provided during last week's confirmation hearings. And two GOP senators -- Lindsey Graham (SC) and Orrin Hatch (UT) -- apparently declined to take the opportunity to pose additional questions.

Judiciary Cmte ranking member Jeff Sessions (R-AL) posed the most questions, asking for Sotomayor to elaborate about her efforts for the Puerto Rican Legal Defense and Education Fund (PRLDEF), particularly concerning that group's work in abortion-rights cases. But in nearly every instance, Sotomayor said she knew little of the fund's activities while she was on the board.

"As a member of the board of the Puerto Rican Legal Defense and Education Fund, I did not write, edit, or approve briefs drafted by the organization's staff lawyers," she wrote.

"While the board was responsible for ensuring that the broad areas of litigation were consistent with the mission statement of the Fund, the board did not review the briefs in cases selected by the staff lawyers, nor the individual arguments made by those lawyers in briefs filed on behalf of the Fund. Because I was not involved in the drafting or editing of this brief, I cannot speak to the good faith legal basis for the arguments raised in the brief. The Board assumed that the attorneys would comply with Rule 3.1 of the ABA Model Rules of Professional Conduct (or analogous state rules) and Rule 11 of the Federal Rules of Civil Procedure, each of which requires that an attorney's argument be supported by existing law or a "good faith" argument for extending, modifying, or reversing existing law, or a similar standard."

Sessions also asked about a factual answer she gave last week about her ruling Ricci v. DeStefano. Sotomayor said a statement she made during her confirmation hearings -- that the original district court decision on which she relied for her circuit court ruling was 78 pages long -- was inaccurate. "You are correct that the district court's decision was 48 pages long as issued by that court, not 78 pages as I had thought," Sotomayor wrote. "It is possible that the decision was 78 pages as initially reproduced by Lexis and Westlaw, using those services' 'star' pagination, but those original versions of the district court's decision are no longer available."

Sessions also asked Sotomayor about using foreign law to decide cases, the USA PATRIOT Act, property rights, capital punishment, 4th amendment issues, campaign-finance restrictions and her membership in the all-female group the Belizean Grove.

"In my view, the Belizean Grove does not invidiously discriminate on the basis of gender," Sotomayor wrote. "The group allows men to participate in Belizean Grove activities, and to my knowledge the Belizean Grove has never denied membership to a man seeking admission. Because the Belizean Grove does not practice invidious discrimination on the basis of gender, I did not see the need for any efforts on my part to change the policies of the organization, nor did my membership violate the Code of Judicial Conduct. Nevertheless, because my membership raised concerns on the part of Senators considering my nomination to the Supreme Court, I resigned from the organization."

Sen. John Cornyn (R-TX) asked Sotomayor about a number of past SCOTUS decisions. "In your view," he asked in one question, "did Brown v. Board of Education make law or did it merely interpret law? Please explain."

"I believe that the Supreme Court 'interprets' law," she responded in every instance.

For Brown, she responded that the decision "is widely regarded as a correct interpretation of the constitutional command for equal protection of the laws."

When Cornyn asked about the Dred Scott and Lochner v. NY decisions, she wrote that those cases were "widely regarded as wrongly decided."

When asked about Roe v. Wade, she responded: "Cases subsequent to Roe v. Wade ... have re-affirmed the core holding of Roe. Cases related to termination of pregnancies continue to come before the Court, and therefore it would be inappropriate for me to comment further."

Asked about the court's decision in Bush v. Gore, she wrote, "I would not comment on the merits of a recent Supreme Court decision."

Senate Min. Whip Jon Kyl and Sens. Chuck Grassley (R-IA) and Tom Coburn (R-OK) also submitted new inquiries.

It's noteworthy that Hatch has never voted against a SCOTUS nominee in his 32-plus years in the Senate, and Graham seemed the most disposed of the cmte's seven GOPers to vote for Sotomayor during her confirmation hearings last week. Neither Hatch's nor Graham's office was immediately available for comment.

Sessions asked Sotomayor to describe the process by which she completed the questions. "Responses to these questions were drafted by legal staff of the White House based on my guidance," responded Sotomayor. "I edited these draft responses, and gave final approval to all answers."

The Judiciary Cmte is slated to meet tomorrow morning to mark up the nomination, but Sessions said the GOP will likely invoke cmte rules in delaying the vote a week, until 7/28.

(STEVEN SHEPARD)