To the editor:
The date was June 1980. Alexandrias Old Dominion Boat Club was about to celebrate its 100th Anniversary and had invited then-Lt. Governor Chuck Robb to be the keynote speaker at the celebration. As some may remember, at that time the boat club did not allow female members. Of course, that has now changed and last year the club elected its first female president. But back to the story. Almost immediately the National Organization of Women objected to Robbs appearance based upon the clubs exclusionary membership policy. It even went so far as to organize a protest at the outdoor event that was so loud, Robb had to jettison his prepared remarks and spend his time trying to silence the raucous protesters.
So, where is NOW given the revelation that Supreme Court nominee, Judge Sonia Sotomayor, until recently, belonged to the exclusive all-woman Belizean Grove Club? Sotomayor only resigned after she was nominated to the high court and after objections were raised to her membership. NOW was very clear in a press release. It enthusiastically supports Sotomayor, noting that there is literally no comparison between womens groups and mens groups . . . Clubs like the Belizean Grove act as a support network for women striving for the recognition they deserve in male-dominated fields.
Excuse me, but that seems to be more than a bit of a double standard, particularly given NOWs treatment of Robb and its 1987 objection to the nomination of Justice Anthony Kennedy to the Supreme Court, in part because of his past membership in San Franciscos Olympic Club that excluded women and minorities. Does this represent a change in policy or merely reflect that it is inconvenient for NOW to challenge a woman nominee?
The real issue regarding Sotomayors membership in the Belizean Grove Club is that it violates the federal judiciarys Code of Conduct, something missing from NOWs analysis. And Judge Sotomayor joined the club long after she became a federal judge knowing of the codes proscriptions. The code counsels that: A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin. It is designed to protect against perceptions that a judges impartiality may be impaired and to avoid the appearance of impropriety.
On its website, the Belizean Grove Club bills itself as a constellation of influential women who are key decision makers in the profit, non-profit and social sectors. In a letter to the Senate Judiciary Committee addressing the controversy, Sotomayor asserted that the club does not discriminate on the basis of sex because to the best of my knowledge, a man has never asked to be considered for membership. Such a defense rings hollow.
Sotomayors membership in the club raises a serious question of judgment, a critical issue in determining whether a nominee is suitable for the nations highest court. Knowingly joining a club that discriminates in its membership on the basis of sex in defiance of a clear prohibition in the federal judiciarys Code of Conduct at best demonstrates poor judgment. At a minimum, this should be fully explored by the Senate Judiciary Committee in considering her nomination.
Another serious issue is Sotomayors judicial temperament. According to the 2009 Almanac of the Federal Judiciary, she is regarded by lawyers who practice before her as a terror on the bench, temperamental and excitable, overly aggressive not very judicial and one who abuses lawyers. One commented: She behaves in an out of control manner. She makes inappropriate outbursts. In the view of another: She is nasty to lawyers. She doesnt understand their role in the system as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like. I personally observed similar behavior when I attended several oral arguments in the Second Circuit some years ago. Such comments by lawyers who have appeared before her should raise serious questions as to her temperament on the bench. The lack of courtesy toward counsel should have no place in the nations highest court.
Certainly there are other issues that must be explored in her confirmation hearings, including her statements suggesting she viewed her heritage as giving her a capacity to resolve legal disputes that exceeded that of white males. And her role in deciding to issue only a one paragraph affirmance in the Connecticut firefighters case recently reversed by the Supreme Court, despite the serious issues of disparate impact and disparate treatment present in the case.
Good judicial temperament and sound judgment, however, are essential qualities in any judge, particularly one appointed to the Supreme Court. They are as important as legal ability. I hope that as the Senate considers her qualifications, it pays particular attention to these issues and does not allow them to be swept aside in its haste to confirm another first.