Transparent Justice: The Sotomayor Nomination and Judicial Transparency

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Monday at 10 a.m., the Senate Judiciary Committee starts its hearing on the nomination of Judge Sonia Sotomayor to the position of Associate Justice of the U.S. Supreme Court.

The Internet And the Confirmation Hearing

The Senate Judiciary Committee has made significant efforts to make this a public process. The witness list has been announced for Monday’s hearing and for the remainder of the hearings, although we don’t know who is scheduled to testify on particular days, and the full list of witnesses is not available on a separate page with its own permanent URL. The Committee’s extensive questionnaire for the Judge and her responses, as well as related materials such as the Committee’s letters regarding her nomination, have been published online.

In addition, the Committee will webcast the hearing live. As is usual practice, we should see the witnesses’ written statements posted online as their testimony occurs — the testimony has likely already been submitted, per the Committee’s rules —¬† and we hope that the Committee will rush transcripts of their testimony as well.

Committee And Senate Rules Regarding Judicial Confirmation Hearings

For the Senate Judiciary Committee to issue its recommendation on confirmation to the Senate, a majority of the Committee must be present at the vote, and a majority of those present must vote to support the action taken. In other words, of the 19 Committee members (including newly elected Senator Al Franken, who replaced Sen. Ron Wyden on the Committee), a minimum of ten Senators must be present at the time the Committee votes on her nomination, with a majority (six, in this example) voting for the Committee’s recommendation. Under the Committee’s rules, at least two members of the minority party must be present for the Committee to conduct business.

A description of the Judiciary Committee’s common practices regarding judicial nominations is available here. [Please note that the Committee has erroneously retained Sen. Wyden’s biography on its page listing its members, although it removed him from its list of members. It has yet to add Sen. Franken’s biography.]

Assuming the Committee votes to recommend Judge Sotomayor’s confirmation, her nomination will be forwarded on to the full Senate for action. The nomination will be placed on the Senate’s Executive Calendar for consideration. To confirm the nomination, a majority of the Senate is required to vote in favor. Were opponents of the nomination to attempt to filibuster – to debate indefinitely so as to kill the nomination (read more from CRS here) – 60 votes would be required to end the debate and proceed to a vote.

Moving Towards A Transparency Judicial Branch? Some Open Questions

Although debate on whether to confirm Judge Sotomayor will likely proceed along the usual political lines, it will be interesting to see whether she makes statements or faces questions on the issue of transparency, which has been much debated as it pertains to the Executive and Legislative branches.

Some basic questions regarding Judicial branch transparency practices could include:

  • Would she support requiring the Supreme Court to place all of its decisions online, going back to the founding of the country? Those rulings, after all, are the law of the land. Currently, less than a decade’s worth of decisions are made available on the Supreme Court’s web site.
  • Would she support placing all merits and certiorari briefs on the Supreme Court’s web site, so that citizens can read all the arguments made before the Court, and not just the Court’s final decisions? The Court does not make any of these briefs available on its web site now, and has asked the American Bar Association to publish the merits briefs on the ABA’s web site.
  • Would she support making available a contemporaneous transcript of the day’s oral arguments, including audio recordings of the arguments? If so, would she agree to publish the recordings on the Court’s website? Eventually, the National Archives releases audio recordings of arguments that took place before the Court, but not until the start of the next Term in October. However, on a few occasions, the Court has made audio of oral arguments available on the same day the arguments¬† took place. It could do so on a regular basis, and place those audio recordings on its web site.
  • Would she advocate that the federal courts should make available online — and at no charge — all proceedings before the Court (filings, orders, opinions, etc.),¬† instead of the current PACER system which charges users to view these public documents?
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  • John Thacker

    Judge Sotomayor’s panel in the Ricci case issued their ruling in an unpublished summary order. The 72-page District Court ruling that her panel relied on was unpublished, too. (If it had been published, then an unpublished order affirming would be more understandable.) Unpublished rulings do not contribute to legal transparency.

    Her extremely short opinions in Didden v. Port Chester (an eminent domain case where the town took land from one person who wanted to build a Walgreen’s and gave it to another developer to build a CVS) and Maloney v. Cuomo (re: incorporation of 2nd Amendment under the 14th) also failed to discuss both sides of quite open legal issues, something that works against transparency and the public’s legal understanding.

    Finally, I have severe issue with her ruling in Doninger v. Niehof, where she upheld the power of a school system to punish a student for a blog posting written outside of school grounds and not during school time.

  • Ashleigh

    Presente Action — with the support of the Progressive Change Campaign Committee — is airing Spanish-language ads in key congressional districts in Florida, holding Republicans accountable for racist remarks toward Sotomayor. You can chip in to keep the ads on the air at: http://www.DenunciaRush.com. Every 100 people who give $25 will keep the ads on the air another day. Let’s show Republicans that racism has consequences.