Release: Immediate

Contact: Charles Hall, Justice at Stake, (202) 588-9454; chall@justiceatstake.org

Senators Urged to Probe Sotomayor on Proper Role of Impartial Courts

A national court-advocacy group has called on U.S. senators to pose 10 questions to Supreme Court nominee Sonia Sotomayor, to gauge her views on insulating courts from “inappropriate political influence.”

In a June 19 letter to the Senate Judiciary Committee, the Justice at Stake Campaign said the questions “will help Americans to understand Judge Sotomayor’s perspective on the significance of a fair and impartial judiciary. We encourage you to bring these pertinent issues to the public’s attention.”

The list of questions includes general queries about Sotomayor’s attitudes on the separation of powers, judicial impartiality and the importance of an independent judiciary. It also cites cases Sotomayor and other judges have faced, to gauge her attitudes on when a judge should avoid a case to prevent ethical conflict; the right to bail during certain immigration proceedings; judicial discretion in sentencing; and FBI investigative powers under the Patriot Act.

The Judiciary Committee is scheduled to begin hearings on Sotomayor’s nomination July 13. Justice at Stake is a nonpartisan national partnership that works to protect courts from special interest and partisan pressure.

“The confirmation process is a unique opportunity to urge nominees to educate the public on the importance of courts that are fair, impartial and independent,” said Bert Brandenburg, executive director of Justice at Stake. “These questions, like many others being submitted to senators, stand in contrast to recent trends in state judicial elections, where questionnaires are sometimes used to threaten ballot box retribution if judges don’t rule on behalf of interest group agendas.”

Excerpts from the letter and the full questionnaire are as follows:

June 19, 2009

The Honorable [NAME]
Committee on the Judiciary
United States Senate
[ADDRESS]

Dear [NAME]:

As the U.S. Senate prepares to consider the nomination of Judge Sonia Sotomayor to the Supreme Court of the United States, Justice at Stake is pleased to offer ideas for questions that could help illuminate the nominee’s views on an increasingly important public policy issue – protecting the integrity of our courts from inappropriate political influence. We believe that this nomination offers a tremendous opportunity to educate Americans about the importance of a fair and impartial judiciary.

Justice at Stake is a national, nonpartisan partnership of more than 50 organizations working to keep courts fair and impartial through citizen education, civic engagement and reform. We have built a coalition to help Americans protect the courts that protect their rights, shield our courts and judges from excessive partisan pressure, and reduce the power of money and special interests over the judicial selection process. Justice at Stake does not endorse or oppose specific nominees or candidates.

We think the following ten questions will help Americans to understand Judge Sotomayor’s perspective on the significance of a fair and impartial judiciary. We encourage you to bring these pertinent issues to the public’s attention by asking the following: 

1. What conditions do you think characterize a fair and impartial judiciary? How important is such an institution to the functioning of our democracy? What principles guide you to fairly and impartially apply the law as a judge?
    
2. The Supreme Court recently ruled in Caperton v. Massey that the Due Process Clause of the Fourteenth Amendment sometimes requires judges to recuse themselves in cases where they have received a significant amount of campaign support from a party in a pending case.  In your answers to the questionnaire for this committee you informed us that you have recused yourself well over 100 times for a variety of reasons. Can you explain to us your own thinking regarding when and why you will remove yourself from a case? What disqualification standards should Americans expect from their Supreme Court justices? 
    
3. Can you share some of your views regarding the separation of powers among the three branches of government? What is your philosophy on the proper role of the judiciary as a check on the executive and the legislature? What principles would guide you in cases before the Supreme Court?
    
4. What criteria should the Congress use in applying its Constitutional power to impeach a federal judge?  What norms should be used to balance the need for accountability with the need to insulate judges from improper political pressure?
    
5. In a 2007 case entitled Kraham v. Lippman, 478 F.3d 502 (2d Cir. 2007), you held that a judicial rule preventing leaders of political parties, their families, or their law firms from receiving appointments to state courts did not violate the First Amendment right to freedom of association.  You wrote that the rule “further[ed] the rational and legitimate goal of eliminating corrupt court appointments” and that the interest in “protecting the integrity and the appearance of integrity” of the courts was “not merely legitimate, but compelling.” Can you expand upon your view of the importance of a fair and impartial court system in our democracy?
    
6. During his confirmation hearing, Chief Justice John Roberts opined that “Judges are like umpires. Umpires don't make the rules; they apply them.”  Do you agree with this view? Why or why not?  
    
7. In Elkimiya v. DHS, 484 F.3d 151 (2d Cir. 2007), you held that an applicant for lawful permanent residence in the United States could apply for bail from detention, though you denied the petitioner the privilege in that case.  Others have disagreed with your decision on the general right to apply for bail, reasoning that the REAL ID act had given the Attorney General the unreviewable authority to release or detain applicants for asylum. See e.g., Bolante v. Keisler, 506 F.3d 618 (2007).  How important do you think access to the court system is in our system of government? In what ways do you believe the constitution ensures access to the court system for non-citizens?
    
8. In a recent case, U.S. v. Cavera, 550 F.3d 180 (2d Cir. 2008), you wrote an opinion dissenting in part. You said that “arbitrary and subjective considerations, such as a judge’s feelings about a particular type of crime, should not form the basis of a sentence …[y]et a serious danger exists that sentencing judges will dress their subjective views in objective trappings … . We only encourage […] confusion if we signal that our review is arbitrary.” 550 F.3d at 219.  As a former assistant district attorney and federal sentencing judge, you have particular experience with the need to balance judicial discretion in particular cases with standard guidelines and appellate review of lower court decisions. Can you share with us your philosophy about the proper role of judicial discretion in federal sentencing?
    
9. You recently joined a unanimous opinion in John Doe Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008), that invalidated portions of the PATRIOT Act giving FBI agents the authority to release so-called “gag-orders” without judicial approval. What do you think the specific role of the judiciary ought to be in protecting civil liberties from potential government overreach?
    
10. Two of the cases among those you consider your most significant opinions involved protecting First Amendment rights. In United States v. Quattrone, 402 F.3d 304 (2nd Cir. 2005), you maintained the right of the press to release the names of jurors in an open courtroom, and in Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003), you sided with a prisoner’s right to celebrate a religious holiday he deemed subjectively important. In light of these cases, what is your view on the role of the courts in upholding constitutional rights and the rule of law?
     

Sincerely,

Bert Brandenburg                    Deanna Dawson
Executive Director                   Director of Federal Affairs
Justice at Stake                        Justice at Stake