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Senate Lawyers Toil Behind the Scenes in Preparation for Sotomayor Hearings
The National Law Journal
June 17, 2009
When the curtain goes up on Sonia Sotomayor's confirmation hearing next month, the stars of the show will be the nominee and the 19 members of the Senate Judiciary Committee. But this production is scripted mostly by a handful of Republican and Democratic lawyers on Capitol Hill.
These lawyers are currently digging through documents and drafting questions for senators to ask Sotomayor. And while the theme of an almost certain confirmation remains, one or two discoveries could alter that story line before hearings begin on July 13.
Leading the Democrats is longtime Capitol Hill staffer Bruce Cohen, whose experience includes the four most recent U.S. Supreme Court confirmation battles. The Republican crew is headed by a new arrival to the Senate staff, Brian Benczkowski, who was a high-ranking Justice Department official during the most recent Bush administration. Working under them are groups of lawyers with varied experience -- from private practice to academia to other government service.
Lawyers are reading speeches and opinions, researching their meaning, and writing case summaries in the hope of finding something that will bolster their side. The work is on an enormous scale, given Sotomayor's long career as a judge. "They're the ones who are doing all the research, who are reading all the cases," said Tom Korologos, a strategic adviser at DLA Piper who has advised Republican presidents on Supreme Court nominations. "You can't expect a senator who's got six bills on the floor and three hearings to attend to read all those cases."
There is already evidence of their influence as senators, looking for a strategic and political advantage, debate how forthcoming Sotomayor, a judge on the 2nd U.S. Circuit Court of Appeals, has been in turning over documents. "The key here is to cull through the nominee's writing and speeches and other statements and try to identify points of potential concern and to assist the senator in probing them in ways that the public can understand," said one lawyer who worked on multiple Supreme Court nominations for a Senate Democrat.
Sotomayor's career path isn't the only one at stake. The confirmation process is a chance for a new generation of partisan lawyers to gain valuable experience and -- if any can make a big find among the thousands of pages of documents -- to distinguish themselves. Ronald Klain built his resume as chief counsel to the Judiciary Committee's then-Chairman Joe Biden. D-Del., during the confirmation process for Justice Clarence Thomas. Klain went on to be an associate counsel in the Clinton White House, the chief of staff to Vice President Al Gore and a partner at O'Melveny & Myers, among other jobs. Now Biden's chief of staff, he helped lead the process that led to Sotomayor's nomination.
ASSEMBLING THE TEAMS
Republicans enter the confirmation process after having recently upended their staff on the Judiciary Committee. Pennsylvania Sen. Arlen Specter's switch to the Democratic Party in April meant that Republicans had to find a new ranking member on the committee, and their choice, Sen. Jeff Sessions, R-Ala.) replaced much of Specter's old staff with his own hires.
Sessions hired Benczkowski, formerly chief of staff to then-Attorney General Michael Mukasey, to direct the Republican staff. He also chose as a chief counsel for the Supreme Court confirmation process Elisebeth Cook, who worked on judicial nominations in the Justice Department's Office of Legal Policy. Cook, a former associate at Cooper & Kirk , was assistant attorney general in charge of the office during the last eight months of the Bush administration.
Republicans have also begun adding a crew of young lawyers from the Bush administration on a temporary basis. Ryan Nelson, a former Sidley Austin associate, was a deputy general counsel at the Office of Management and Budget. Ashok Pinto, a former Foley & Lardner associate, was a deputy associate White House counsel. And Seth Wood, a former associate at what was then Wiley Rein & Fielding, was a counsel in the Office of Legal Policy.
So far, Democrats appear to be relying more on their in-house staff. Cohen, a top aide to Judiciary Committee Chairman Patrick Leahy, D-Vt., since 1994, leads the Democratic staff. Leahy's chief counsel for nominations is Jeremy Paris, a former associate at Akin Gump Strauss Hauer & Feld who worked on the nominations of Chief Justice John Roberts Jr. and Justice Samuel Alito Jr.
The research of the Republican side has started to yield some public results. On June 10, all seven GOP members of the Judiciary Committee signed a letter to Sotomayor complaining that some of her answers to the committee's background questionnaire had been incomplete or inconsistent. Why, the letter asks, was she not able to locate any record at all for 98 of the at least 191 speeches she's given since the early 1990s? Sotomayor had not responded with additional records as of late last week.
One GOP aide said their research will include areas that, in the past, would not have been given much scrutiny. That includes reviewing unpublished opinions from Sotomayor's time as a federal judge in the Southern District of New York from 1992 to 1998, before such opinions were included in electronic databases. "We're going to need to review her unpublished opinions to see whether anything in those opinions sheds further light on her record," the aide said.
Digging through records can turn up unexpected leads. In August 1991, an investigator for Senate Democrats, Ricki Seidman, was scrutinizing old travel records of then-nominee Clarence Thomas when she saw a high number of trips taken to Oklahoma. She asked the opinion of another staffer, who mentioned an allegation that Thomas had sexually harassed a woman named Anita Hill, then living in Oklahoma. The information hadn't gone very far up the Senate's staff hierarchy, but Seidman made sure it did, according to the 1994 book "Strange Justice: The Selling of Clarence Thomas". Hill testified in public and nearly derailed Thomas' nomination. (Seidman is now advising the Obama administration about Sotomayor's nomination.)
PRIME TIME
Both sides are getting assistance -- or interference -- from interest groups, reporters and, more recently, bloggers. The Internet has provided greater access to records and other information, allowing for collective research efforts. "It used to be a lot more arduous and dependent on the work of the staff. A nominee's speeches would be delivered in hard copy and housed in a room in the Hart Building. Staff would have to go over and read them," the former Senate Democratic lawyer said. Now, Sotomayor's speeches are on YouTube, allowing people to see and hear for themselves her comments about the impact of gender and ethnicity on judging.
In one of the latest flare-ups over Sotomayor's nomination, the conservative Judicial Confirmation Network accused Sotomayor of failing to provide the Senate with a copy of a 1981 memo she signed when she was a board member of the Puerto Rican Legal Defense & Education Fund. The memo opposed the return of the death penalty in New York state, citing among other factors evidence of racial discrimination in the death penalty's application. Sotomayor hadn't mentioned it in the completed questionnaire she sent the Senate on June 5. The White House called it an oversight, while Republicans leaped on it as evidence that Democrats are rushing Sotomayor's nomination.
How did the memo come to light? Gary Marx, executive director of the Judicial Confirmation Network, said his group's research team discovered the memo while looking into the Puerto Rican group. He declined to elaborate, saying, "We have a good team, and they do a good job, and we appreciate them finding this memo."
No matter what gets uncovered, senators and their staffs will have to be able to package it for a national audience. Much of the public's understanding will still come from what they see on television, meaning that staff members working on the process will be looking for messages that can fit into a sound bite.
"The biggest challenge for a member of the Judiciary Committee is you have half an hour to question the nominee, and you have to explain to the viewer what it is you're asking about," the former Senate Democratic lawyer said. "The challenge is it can take quite a while to do that. It's a very difficult thing to do."
