Patterico's Pontifications

7/11/2009

Sotomayor and PRLDEF

Filed under: Government,Judiciary,Obama — DRJ @ 3:52 pm

[Guest post by DRJ]

Sonia Sotomayor served for 12 years on the Board of LatinoJustice Puerto Rican Legal Defense and Education Fund (PRLDEF), an organization founded to help Puerto Ricans combat discrimination in employment, education, voting, housing, law and other areas. The LA Times recently published an article on Sotomayor’s involvement with PRLDEF, including her involvement in a lawsuit against New York City regarding its police promotion exam:

“While Sotomayor sat on the board, the fund moved beyond traditional civil rights cases and began to address what she called “economic problems” — wage disparities and housing discrimination. A major target became civil service exams that the fund argued had a negative effect on Latinos and other minorities. It filed separate suits against New York City’s police, fire and sanitation departments.

In 1984, while Sotomayor was on the board, the fund alleged on behalf of a group of Latino police officers that a sergeant’s exam violated federal law because minorities did poorly on the test and its questions were not related to being an effective police supervisor. Fewer than 80% of the test takers were white, but the results indicated they would get 95% of the promotions.
***
Frederick A.O. Schwarz Jr., New York City’s top lawyer at the time, said recently that “it was almost impossible to prove that pen-and-paper tests” reflected who was most qualified for promotion. At the same time, the police commissioner was in desperate need of new sergeants. So the department settled the case by agreeing to promote an extra 100 black officers and 60 Latinos.

New York “had to reach down and [promote] some patrol officers who were black and Latinos who hadn’t passed” the test, said Kenneth Kimerling, the defense fund’s lawyer on the case.

Though Sotomayor was not actively involved in litigating the case, she has taken credit for helping to develop the group’s policy of filing such suits.”

PRLDEF supports Sotomayor’s confirmation and, in advance of Sotomayor’s confirmation hearings starting Monday, the AP interviewed PRLDEF founder Cesar Perales who seems to be minimizing Sotomayor’s participation in the New York promotion exam cases:

“Sotomayor held leadership roles on the legal defense fund’s board from 1980 to 1992, starting soon after she graduated from law school and began working, leaving it when she became a federal judge. Perales has described her role as helping with fundraising and setting policy and said she was not directly involved with the group’s legal arguments and activities.”

The idea that Sotomayor was “not directly involved” in legal matters is consistent with the White House claim that Sotomayor’s involvement in PRLDEF was limited, but at least one GOP Senator disagrees:

“Perhaps there is confusion about Judge Sotomayor’s role with PRLDEF, and that confusion may account for your unusual interest,” [White House counsel Gregory] Craig wrote, adding, “Judge Sotomayor was never an employee of PRLDEF nor did she ever supervise the work of PRLDEF staff.”

[Senator Jeff] Sessions disputed Craig’s characterization of Sotomayor’s involvement with the group as peripheral, saying she was deeply involved with the group for more than a decade.

“Judge Sotomayor served in senior leadership roles at the Puerto Rican Legal Defense and Education Fund for 12 years,” Sessions said, including chairwoman of the organization’s litigation committee and vice president of the board of directors.”

The LA Times’ excerpt noted above (that Sotomayor “has taken credit for helping to develop the group’s policy of filing such suits”) supports Sessions’ claim. In addition, the AP article confirms Sotomayor chaired the litigation committee during this period:

“The [New Haven] case bears similarities to a case PRLDEF brought on behalf of Hispanic New York City sanitation workers who sought to stop white employees from getting promotions, arguing that the promotion exams unfairly disadvantaged minorities. Sotomayor chaired the board’s litigation committee at the time.”

This should be an area that gets attention from the GOP Senators during Sotomayor’s confirmation.

– DRJ

34 Responses to “Sotomayor and PRLDEF”

  1. Is Sotomayor the best we can do? Surely even her supporters must be asking themselves the same question.

    Diffus (219f04)

  2. It is prolly racist to even ask these questions of her.

    JD (afa5a9)

  3. Although she clearly has a bias I dont see any reason that she should have recused herself in the New Haven case even if she had actually litigated similar cases?

    drone (dd9f7b)

  4. Because having an obvious bias is a good thing?!

    JD (afa5a9)

  5. I’d really like to see this test, especially the ‘racist’ questions.

    epobirs (8c21d9)

  6. “Because having an obvious bias is a good thing?!”

    Because having worked for someone and helped them take a position isn’t enough for you to recuse yourself from a case involving different parties

    imdw (41b4a1)

  7. IMDW

    Your comment is incoherent. So taking the part of one group of minorities would not be case to recuse yourself iun a case involving a different set of minorities in the same issue?

    Rationalizing such behavior is neither an excuse or an explanation. Its just repackaging fatuous resentments.

    Thomas Jackson (8ffd46)

  8. Thomas – Has recusal been an issue for Ginsburg, who was a lawyer for the ACLU and one of its General Counsel prior to becoming a federal judge and a supreme court justice?

    daleyrocks (718861)

  9. Epobirs at 5 – If you are talking about the New Haven firefighters case the cities attornies went over the test with a fine tooth comb. The worst example they could come up with? (Bear with me I’m quoting from memory.)

    When responding to a multi-unit call out, should engines and trucks be parked facing uptown or downtown?

    The problem with the question is that New Haven has no generally recognized up town, making the question somewhat nonsensical for the NHFD. The company hired to produce and administer the test is a nation wide company doeing so for large cities all over. Speculation is that this one question was influenced by New York city practices. That said the correct answer as looked for by the evaluators was provided in the study materials provided to all candidates taking the exam.

    See my other comments about this test in comment 22 on the Personal Destruction thread. (Too tired to repeat them here.)

    Have Blue (854a6e)

  10. Thomas Jackson, there are fairly specific rules for when judges must recuse themselves. Those rules may very well constitute “repackaging fatuous resentments”, but I think that it’s far more likely that the rules were adopted for reasons which appeared reasonable at the time.

    My suspicion is that the rule that representing group X on a given case regarding issue Y does not require recusal on a different case regarding issue Y and different groups is that requiring recusal in such cases would make it vanishingly difficult for any lawyer to subsequently serve as a judge.

    Must a judge who represented Wells Fargo in a lawsuit involving taxes recuse himself from a case involving Bank of America and taxes?

    On what a priori basis can you distinguish the two situations?

    aphrael (9e8ccd)

  11. Aphrael – If you are a conservative judge than ever having been in a duck hunting party with some one involved with the probusiness side of the case is enough for demands of recusal and calls for investigation if you don’t.

    Have Blue (854a6e)

  12. Have Blue, were I a judge I would feel ethically compelled to recuse myself from any case in which I were friends with either of the litigants. But that’s not the issue here; the issue is whether or not Judge Sotomayor was required to recuse herself from a case which did not involve anyone she was friends with, or had worked with.

    aphrael (9e8ccd)

  13. “So taking the part of one group of minorities would not be case to recuse yourself iun a case involving a different set of minorities in the same issue?”

    It’s even more general than that. Representing one party on one issue does not mean you have to recuse yourself when the issue comes up. Justice Roberts used to be a supreme court litigator. There may be an issue when a former client comes before him now, on a matter he worked on, but there certainly isn’t when completely different people appear before him on a issue he has worked on.

    imdw (b0cc07)

  14. #13

    Indeed Ginsberg represented various groups who have presented cases in front of the Supreme Court and has never recused herself. If there are rules for such removal I have never seen them posted anywhere.

    Perhaps Aphrael can cite what these rules are since he claims they exist? I find that they must be like our loosely enforced libel laws since Marshall never removed himself from civil rights issues though he was alawyer for the NAACP.

    Thomas Jackson (8ffd46)

  15. #10

    I have seldom heard of any justice removing him from a case, the last time I did so was Justice Thomas, although I can’t recall the exactcase or specifics. If you have the specific guidelines I certainly would like to see them since justices never seem to act as if they have conflict of interests.

    Thomas Jackson (8ffd46)

  16. “I find that they must be like our loosely enforced libel laws since Marshall never removed himself from civil rights issues though he was alawyer for the NAACP.”

    For the supreme court they’re self enforced. A recent case of this was the request for scalia to recuse himself from a case involving dick cheney, a hunting buddy. The decision was up to scalia.

    Even if strongly enforced, I suspect they wouldn’t apply like in the situation you said. Many of the justices have actually practiced, had clients, or published in law reviews in their past. They wouldn’t be expected to recuse themselves whenever something similar to something they had worked on came up.

    imdw (f41ee5)

  17. Sure thing, Thomas Jackson.

    28 USC 455 says:
    (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

    (b) He shall also disqualify himself in the following circumstances:

    (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
    (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
    (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
    (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
    (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
    (i) Is a party to the proceeding, or an officer, director, or trustee of a party;
    (ii) Is acting as a lawyer in the proceeding;
    (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
    (iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

    Note that the definition of (a) established by precedent is that it’s basically useless; it’s left to the individual judges to decide when their impartiality might reasonably be questioned, and it’s extremely difficult for that determination to be overruled.

    (b)(2) is the common case: if you were a lawyer in the matter in controversy, you must disqualify. Not if you were a lawyer in some other similar matter involving different parties.

    —————

    Supreme Court Justices remove themselves from cases periodically. Often it’s because (3); Justice Rehnquist recused himself from the Nixon tapes case for that reason, for example. Sometimes it’s because (4); that’s why the Lotus/Borland lawsuit was able to be a 4-4 deadlock.

    Note that, under these rules, Justice Ginsburg can rule on cases involving people she previously represented as long as she did not represent them on the matter involved in the case.

    As I said before: if you didn’t limit the rule to work on the case in question, it would be extremely difficult for any practicing lawyer to become a judge.

    aphrael (9e8ccd)

  18. So were are to assume that Sotomayor just voted ‘present’ at her stints with PRLDEF and with La Raza? I don’t buy it. She’s a racist/bigot through and through.

    eaglewingz08 (e40a12)

  19. Hasta la vista, baby!

    Sotomayor has higher negative poll numbers than. . .Bork.

    “Sonia Sotomayor will begin her confirmation hearings next week with some of the highest levels of public opposition of any Supreme Court nominee in the last two decades, according to a new poll by CNN and the Opinion Research Corporation.

    In fact, only one nominee had a higher level of opposition: Harriet Miers, who was appointed by President George W. Bush in 2005. Miers later withdrew her nomination under questions about her qualifications from both the political left and right.

    Forty-seven percent of respondents to the poll say they would like to see the U.S. Senate vote to confirm Sotomayor versus forty-percent who say they would not. In the final CNN poll taken before Miers withdrew her nomination, forty-three percent of respondents said the Senate should oppose her confirmation.

    No other recent nominee, not even Robert Bork, whose own nomination under President Ronald Reagan was scuttled, faced public opposition this severe. In the last poll taken during the Bork confirmation fight, thirty-eight percent wanted to see him confirmed versus thirty-five percent who did not.”

    [emphasis mine]

    Official Internet Data Office (62caf8)

  20. #17

    Aphrael:

    Thank you for a informed and excellent post, It is very helpful though the restrictions are toothless. The determination is made by the judge as to conflict of interest which, if you’ll excuse me is like asking someone if they beat their wife.

    It would seem that you should recuse yourself on much more definite and restrictive standards that would be enforced by an independent body. Now it is hard for me to believe that a justice who represented say, Citibank, for years, could remain objective about this company if it were hauled up before them. Of course this is my opinion based on the behavior I have seen or read about in the court system.

    I am not a lawyer so I am no expert. But I have dealt with various legal systems overseas and with our government’s relations with them. So I do know that reason, logic, and commonsense play little part in the judgements of many people in the legal system.

    It is a shame that such a candidate as Sotomayor, is considered the best Obama can locate. If true this only highlights the bankruptcy of our judicial and political systems.

    Thomas Jackson (8ffd46)

  21. #16:

    In essence there are no restrictions then. Aside from the prohibitions to a drug addict to use self restraint and not shoot up, right?

    Thomas Jackson (8ffd46)

  22. TJ,

    I appreciate aphrael’s comment, too, and I’d like to echo his conclusion on recusal. I agree it’s both good and bad when justices have knowledge of subjects before the Court. The case that always comes to my mind on this topic is Justice Blackmun and Roe v Wade, and how his pre-Court representation of the Mayo Clinic affected that opinion.

    DRJ (6f3f43)

  23. DRJ:

    There is a difference between knowledge of a case and its principles and involvement. If one is the hired gun of chickens inc. I think peronnal interest in the outcome of the case may over ride common sense or the law. I would find it far better if our justices had a long record as judges rather than as lawyers prior to being considered for the Supreme Court.

    The problem, as far as I am concerned, goes back to Marshall’s claim that only the Supreme Court could interpret the law and Constitution. Jefferson warned against this. We are only reaping the fruits of a flaw in the Constitution and in the men who interpret it.

    Thomas Jackson (8ffd46)

  24. “I think peronnal interest in the outcome of the case may over ride common sense or the law. I would find it far better if our justices had a long record as judges rather than as lawyers prior to being considered for the Supreme Court.”

    Actually it’s kind of new that they are so exclusively appellate judges before getting in the court.

    But there’s a problem with a broad definition of ‘personal interest.’ Justice scalia is religiously pro-life. That doesn’t mean he should recuse himself from abortion cases.

    imdw (7c85b9)

  25. President Obama is religiously anti-same sex marriage.

    JD (92df48)

  26. IMDW

    You might review the Constitution. It prohibs religious descrimination as a basis for public office. Nice try at a strawman though.

    There is a unique difference between being the advocate of the ACLU and then arguing that you can ignore the policies of the ACLU.

    Or do you believe the head of the Klan is an acceptable candidate for the court too. If not why not and explain to us why Sotomayor is different from the Grand Dragoon or Lizard or whatever?

    Thomas Jackson (8ffd46)

  27. As Puerto Ricans living in Missouri, we are celebrating the nomination of US Circuit Judge, Sonia Sotomayor, and know that as a nominee she will be an added blessing to the United States Supreme Court with her experience and expertise. But living in the State of Missouri we show there is no other nominee to bring to light the thousands of complaints in the US from Puerto Ricans due to misrepresentation and lack of judicial assistance. Our story is another, being under duress by a community of criminal racists, using ALL societal means to prevent us from representation and judicial expertise. We certainly know the under-current in America is to deny Puerto Ricans a fair share of US citizenship and with Sonia Sotomayor she can make a difference. We want to return home but these un-civil Missourians want to steal ALL our assets and continue to harass in Puerto Rico. We are Degreed Puerto Ricans that have been targeted by this Missouri community to impoverish us and recently have caused us to go into foreclosure with promises that; “even if you return to Puerto Rico we will continue to get you there” harassment. We have sought help to no avail because these people will only defend those “yes men” willing to commit un-American crimes against poor families. These are governing bodies are there to defend US citizens but have denied us any assistance;
    Missouri Supreme Court,

    (573) 751 – 4144
    Office of Chief Disciplinary Counsel Missouri – 3335
    573-635-7400
    The Missouri Bar
    Phone: (573) 635-4128
    Fax: (573) 635-2811
    McCaskill, Claire – (D – MO), Mr. kit Bond (202) 224-6154
    Roy Blunt, Todd Akin,
    Ph: (573) 335-0101
    And many more….

    We are NOT un-civilized people to have to loose our human dignity to cover-up Missourian corruption in ALL areas of civil life wewill not allow it. Recently, on the internet we were surprised when we witnessed a response to a inquiry that was sent to one individual who was forwarded by another to forward our complaint; this is a systematic terroristic action and we will not stay in this community any longer but will not accept the exit strategy being used by these crooked people. I’m sure Sonia Sotomayor can remember the same treatment to her parents in New York in the fifties(50’s) . Missouri is conducting the same treatment to Puerto Ricans here in 2009!
    Pab Marq

    pab marq (abba9c)

  28. Oh, look over here, we’re victims of the system, and you’re a bunch of racists.

    Tired, real tired.

    AD - RtR/OS! (1699eb)

  29. Was that David Petranos Esp and MKDP?

    JD (8bf800)

  30. “Or do you believe the head of the Klan is an acceptable candidate for the court too. ”

    You ever look into why Jeff Sessions isn’t a federal judge?

    imdw (c5488f)

  31. “If not why not and explain to us why Sotomayor is different from the Grand Dragoon or Lizard or whatever?”

    They let Thurgood marshall on the court, no?

    imdw (05d41e)

  32. IMDW:

    As I recall the Dhimmirats urged Eisenhower to put Earl Warren on the court, a decision Eisenhower said was the worst mistake he ever made. Warren together with FDR was the prime actor in the imprisonment and theft of the property of over 100,000 Americans.

    And we see impeached judge Hastings again pushing for a bill to allow similar camps.

    So dhimmies don’t change. Little wonder the Left is is enamored of a system that depends on unelected officials. A system we fought a Revolution to rid overselfs of.

    Thanks for explaining why you’d accept racists. I expected nothing less from you.

    Thomas Jackson (8ffd46)

  33. #27

    You and your organization represent hte kind of extremists this country can do without.

    You label an entire state as racists.

    Are their no hispanic or minority lawyers to help you in Missouri?

    Is your plight so bad that there is not one hispanic lawyer who would assist you anywhere in the USA?

    Could you not list one example of a case where you have been denied justice?

    Just pathetic. The last time I heard this kind of appeal it was from the Black Panthers and La Raza. i’D BE INTERESTED IN SEEING WHERE YOUR FUINDING COMES FROM.

    Thomas Jackson (8ffd46)

  34. “As I recall the Dhimmirats urged Eisenhower to put Earl Warren on the court”

    Marshall. Not warren.

    imdw (0d02ca)


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