Monday, June 8, 2009

Sotomayor Needs To Withdraw

In a story the mainstream media seems intent on ignoring, it was revealed this week that Obama Supreme Court nominee Sotomayor belongs to a “secret society” known as the Belizean Grove. Her membership in that group violates the code of conduct that regulates the behavior of federal judges and, therefore, her nomination should be withdrawn.

Because of their position, federal judges are held to a higher standard than the rest of us in terms of their public comments, in terms of their financial affairs, and in terms of the groups to which they choose to belong. Indeed, according to Canon 2 of the Code of Conduct for United States Judges, which regulates the conduct of federal judges, judges (like Judge Sotomayor) must “accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”

Her membership in the Belizean Grove violates this Canon of judicial ethics in three ways:

1) Judges Must Avoid Even The Appearance of Impropriety and Bias
Section A of Canon 2, requires that judges “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” including avoiding “even the appearance of impropriety.”

While the Canon does not contain an exhaustive list of unallowable behavior, the comments to Section A explain that the test for determining whether or not conduct constitutes an impropriety is:

whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.

Sotomayor’s membership in the Belizean Grove, at the very least, creates the appearance of a lack of impartiality on her part. That is sufficient to violate her ethical obligations. (Whether there was actual bias should be examined as well should she not withdraw.)

Secret societies typically are formed so that members can help other members succeed by favoring them over non-members wherever possible. The Belizean Grove is no different. It’s own website concedes that the group was established in response to “the power of the Bohemian Grover, a 130-year-old, elite old boy’s network” after “realizing that women didn’t have a similar organization.” In other words, the group was established to create an "elite old girl's network." This is confirmed by the group’s mission statement, which provides that:

The Belizean Grove is a global constellation of influential women who are key decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships in order to both take charge of their own destinies and help others to do the same.

At the very least, these statements appear to identify the group’s purpose as the promotion of bias in favor of group members, which would violate Canon 2’s requirement that Sotomayor take no action that casts doubt upon her impartiality. Remember, whether or not Sotomayor acted on such bias is relevant, the appearance of impropriety is sufficient to violate the Canon.

And before you think this is hypercritical, ask yourself if you were accused of a crime, how comfortable would you feel knowing that the judge and the prosecutor (or the victim) had both agreed to enter into a “long term mutually beneficial relationship.”

Moreover, Sotomayor’s silence on her membership and the fact that the group has a secret membership list make this issue all the worse, in that litigants would have no way of knowing if they were facing a stacked deck (which affects everything about how an attorney would handle the case).

Would this not call into question the integrity of the entire judicial system if people knew that some unknown number of judges might favor an equally unknown group of possible litigants or attorneys? Could you ever believe that you got a fair trial?

Thus, even if the group’s purpose is ultimately benign, her membership creates the appearance of impropriety, which violates the code of judicial conduct. She should have resigned. When she failed, she violated Cannon 2, and she should not now be allowed to sit on the Supreme Court.

2) Judges May Not Allow Others To Suggest Special Influence

Section B of Canon 2 provides that judges may not allow their “family, social or other relationships” to influence their decisions, nor may they “convey or permit others to convey the impression that they are in a special position to influence the judge.”

Belonging to a secret society violates this Canon. Indeed, even if Sotomayor has never once allowed her judgment to be swayed, her membership in this group allows other group members to convey the impression that they are in a special position to influence her decisions.

And while you may say the fault of such a statement lies with the person making it, the Canon makes it clear that the judge is at fault for putting themselves into a position where others can make such claims of influence.

This is a primary reason that judges resign from even the most benign sounding groups, like charities or hospital boards, so that no one can claim to have the ear or the loyalty of the judge.

Thus, again, her membership in the group violates this Canon and she should have resigned.

3) Judges May Not Belong To Groups That Practice Discrimination

Finally, Section C of Canon 2 provides that a judge may not be a member of any “organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” The Belizean Grove does. Thus, her conduct violates Section C as well.

Now some will argue that this group's purpose is not invidious discrimination, but that it exists solely to "promote" women. But it is clear from the Belizean Grove’s own mission statement that they discriminate on the basis of sex, in that they are open only to female members. This is invidious discrimination just as if it were open only to white or males.

Moreover, the purpose of the group as discussed above, is not to promote women generally, but to discriminate in favor of female members. That too is invidious discrimination.

Sotomayor’s conduct violated all three parts of Canon 2. It is inconceivable that she could not have known this. That she would have continued in her membership despite this is a violation of the Code, for which she should be sanctioned, and which should preclude her from being appointed to the Supreme Court.


Melissa Marsh said...

Wow. Thank you so much for this post. I sincerely hope she withdraws her nomination.

AndrewPrice said...

You're welcome Melissa.

This is actually a very big deal. But I doubt the media will ever bother to understand it (seeing as how they like her).

And even if they did grasp that something was wrong, they would just ask some lefto from the ABA who would "see nothing wrong with her belonging to a women's 'social group'."

Hopefully, this will help people understand what this really means.

LawHawkSF said...

Andrew: Thanks for a good summary of the canons as they apply to this nominee. Secret societies are probably not a good idea for politicians, but they are not a big deal either. BUT for judges, it's poison. Impartiality is the key to the bench. Not only do secret societies place a judge in a position of meeting with people who exclude others, but the very nature of "secret" means that the public can never know exactly what that group actually believes. Sotomayor needs to drop her membership, or remove her name from nomination.

SQT said...

Sotomayor needs to drop out for a variety of reasons- and this should be the coup de grĂ¢ce for her. But I doubt it will be.

Everything Obama gives his approval to seems to get a free pass from the media and the public. I have little faith that Sotomayor will be any different. I can see any objection to this as being portrayed as being hypercritical (as Andrew said).

I find it frightening that there is so little scrutiny of the people Obama puts in positions of power.

AndrewPrice said...

sqt, I agree completely. They are letting things pass with Obama's people that would have gotten Republican appointees arrested.

You're also absolutely right that the media will treat this as no big deal, but it is. This is the sort of thing that strikes at the heart of the integrity of the judicial system.

patti said...

whoa...gone for a few days and you've rearranged the furniture! sadly, i think that she will be confirmed no matter what society she belongs to. it is just her empathy showing, doncha know.

Captain Soapbox said...

Very interesting and very important article Andrew. She should have withdrawn based on being in La Raza in my opinion, but this is doubly damning.

The problem is, as you've all pointed out, that the media loves her. She's a "first" and the media just loves firsts. If Obama wanted to he could appoint a Cambodian Communist to the Supreme Court and the media would be doing backflips. Why? "Well it's a historic appointment! We never had one of those before!"

That's how shallow the media, and many of the people in the country have become, as long as something is new and "historic" they're all for it. Unless of course there are two firsts competing, then the cooler one will get the support, just ask Hillary about that one.

AndrewPrice said...

Patti, what changes? Just kidding. We felt we needed a new look.

Patti and Captain, sadly, I think you're right. I think this issue will be ignored because she is on the "correct" side of the spectrum.

StanH said...

Great read Andrew! Though you are and have proven you point, it wont make a hoot-n-hell, she’s gonna get to the SCOTUS. But, I do hope our feckless representatives will at least hold her feet to the fire, we’ll see. I was hoping for at least Jeff Sessions, AL. former US attorney, but he was gracious, and following the Senatorial protocol of one sided comity, in other words I fear “our” guys are going to roll over.

StlDan said...

Sotomayor has as much of a chance in getting to SCOTUS as Robert Byrd has at becoming a Senator.

Writer X said...

Was her leg cast today meant to get the sympathy vote? Because her record gets worse by the day. Her credibility ended with the "wise Latina" comment, as far as I'm concerned.

AndrewPrice said...

StanH, I fear you are right. They won't do anything about this. But keep this in mind the next time some liberal tells you that judges need to be "fair" to everyone or the next time some attorney tells you that the legal profession is able to regulate itself.

StlDan -- LOL!! I think I'd rather see Obama appoint Byrd. If Sotomayor gets onto the court, she could be there a long, long time doing whatever the heck fits with her thinking that day.

Actually, from the people I know who have been Supreme Court clerks, I get the impression that weak judges end up letting their clerks do all the work for them, and they basically become figure heads. Of course, that's not good either.

Skinners 2 Cents said...

Great article Andrew.

Why is this the first time I'm hearing about this? O'Reilly's even gone RINO on this issue. Everyone perceives it as a political bomb because of race and gender. In true (R) form everyone gives up. At what point does the conservative half of the isle pipe up. Hell at this point a good majority of Congress should be up in arms.

Why is it that the law doesn't apply to anyone in politics and who do I take that up with.

On a side note there is no law that requires anyone to pay federal income tax either.

So in summary we have to follow laws that do not exist and the ones that do exist do not have to be implemented and it all depends on which side you stand on, citizen or government.


freedom21 said...

I read through her questionnaire yesterday and noticed that she had disclosed it as well. I also noticed that she is one busy woman.

Having just recently taken the MPRE, I found it interesting that she only listed the Belizian Club as her only discriminate organization. One would assume that La Raza should be included in those organizations. Even so, it's interesting to see how this will play out--and most likely, it will not.

AndrewPrice said...

Writer X,

Her Latina comment is troubling, but probably doesn't rise to the level of an ethical issue because she never said that she would favor Hispanics. This issue, however, should disqualify her in my opinion.


I think this is the first time you're hearing about this because (1) the media wants to treat this like "oh, she's in a women's group, isn't that just great" and (2) the Republicans don't know what to do with it.


Having just taken the MPRE, you should be very familiar with the concept of the appearance of impropriety and how important it is to the judiciary. I agree that La Raza should have been listed as well, but that would require an admission that is politically impossible.

freedom21 said...

AP: Despite it's importance, it's shocking that how little attention is given to the study of examination of judicial ethics and how one liberal professor can ruin the whole thing for you (but that's a whole other story....)

There is an article that I am trying to pull up that might shed some light on this subject. (I just can figure out a way to get to it electronically). It would be interesting to see how many other of the federal justices are in similar situations (and if that's why no politicians will say anything).

This is the article:

Is Section 2C of The Model Code of Judicial Conduct Justified? An Empirical Study of the Impropriety of Judges Belonging to Exclusive Clubs, Robert J. Aalberts & Kenneth C. Fonte (Spring 1995) 8:597

Captain Soapbox said...

Honestly to me La Raza is as much a disqualifier as if she were a card carrying member of the KKK or showed up at a Stormfront lecture tour. The have the same kind of mentality just different targets if you ask me.

Aaron said...

great post, but you are missing canon 3(c)(1), which says that she must disqualify herself in any case where her impartiality can reasonably be questioned.

Given her "wise latina" comment, i would sya she has to disqualify herself in any case involving 1) white males, 2) latina females (as parties or attorneys), or 3) discrimination generally.

AndrewPrice said...

Aaron, welcome! Thanks. You also make a really good point. As a judge, she's a mess. How can anyone feel they are getting a fair judge when they stand before her?

That said, I can all but guarantee you that no one will ever hold her to account for any of this. They will explain it as just ethnic/ cultural/ feminist pride, as if that excuses it. Substitute "white pride" or "male pride" for "Hispanic pride" and see how quickly the left starts yelling and screaming.

To me, this should not be a political issue. This is about protecting the judiciary. The left SHOULD be as concerned about this as the right. But they are willfully hypocritical on this because they think they will like her politics. And in the process, they endanger the legal system that holds us all together as a nation.

Post a Comment