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violates the code of conduct that regulates the behavior of federal judges and, therefore, her nomination should be withdrawn.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.