NOTES TO "WHEN SONIA SOTOMAYOR'S HONESTY, INDEPENDENCE, AND INTEGRITY WERE TESTED"

1. Although not identified in the ad campaign, the quote came from a 1989 book called High Treason, the product of two men, Mr. Groden and Harrison E. Livingstone. That book contained separate copyright notices, Livingstone's clearly indicating that he owned the sole copyright to some of the work. [JA 68] Later paperback editions completely eliminated Mr. Groden's copyright interest. [JA 300] During litigation in the U.S. District Court of Random House's motion for summary judgment, conflicting evidence about the authorship and copyright ownership of High Treason was submitted, and there was no evidence in the record that Mr. Groden had ever held himself out to the public as co-author of the entire work, or that he had any control over the original publication and later revisions of the book.
2. Judge Martin's Individual Rules as then in force are reproduced in the Joint Appendix at 302-04. Groden v. Random House, Inc., et al., 61 F.3d 1045 (2d Cir. 1995)(Docket No. 94-9100).
3. Document No. 9, "Memorandum of Law in Support of Defendants' Motion to Dismiss For Failure to State a Claim or, in the alternative, for Summary Judgment," Groden v. Random House, Inc., et al., 1994 WL 45555, 1994 U.S. Dist. LEXIS 11794, 32 U.S.P.Q.2d 1266, 1994-2 Trade Cas. P70,702, 22 Media L. Rep. 2257 (S.D.N.Y. Aug. 23, 19941 (No. 94-Civ. 1074).
4. Although Martin had extensive and longstanding personal and professional ties with the Department of Justice (as Assistant Solicitor General he participated in the extradition of James Earl Ray following the assassination of Dr. Martin Luther King, Jr.; as U.S. Attorney in Manhattan he prosecuted members of the Weather Underground; and he had previously employed the in-house lawyer for Random House who was supervising both the Groden litigation and a parallel lawsuit brought by Mark Lane in the District of Columbia), during the Groden litigation Martin seemed more impressed by the "old school" ties he shared with the defendants' lead outside counsel, his Columbia Law School classmate, Victor A. Kovner. Indeed, in a September 23, 1994, post-judgment Memorandum Order and Opinion, Martin called his connection to Kovner "a far more significant fact" in his dismissal of Groden's lawsuit than his Justice Department connections and experiences. Kovner was Bill Clinton's chief New York fundraiser, friend, confidant and, according to one newspaper columnist, a "judge maker". Kovner's wife, Sarah Schoenkopf Kovner, was Special Assistant to Clinton's Secretary of Health and Human Services, Donna E. Shalala. One of his law partners, Laura Handman, was the wife of Clinton's former White House Deputy Chief of Staff, Harold Ickes. The Kovners accompanied the Clintons to Israel during the Groden litigation, although their role in Mideast diplomacy was never clarified. While Kovner's motion to dismiss Groden's lawsuit was pending, he and Martin dined together at New York's Waldorf-Astoria Hotel, a fact they never disclosed to Mr. Groden's attorney.
5. That case holds that there is no first amendment privilege for expressions of "opinion" per se, since such expressions often imply an assertion of objective fact. An allegedly libelous (hence, false and defamatory statement, is not protected under the first amendment if it states or implies assertions of fact which are provable as false. As Mr. Kovner correctly noted, therefore, the test, was "verifiability," or whether the statement was capable of being objectively characterized as true or false.
6. Murray Space Shoe Corp. v. FTC, 304 F.2d 270, 272 (2d Cir. 1962), citing United States v. Ninety-Five Barrels of Vinegar, 265 U.S. 438, 443 (1924) ("Deception may result from the use of statements not technically false or which may be literally true.").
7. Kovner's raising an important argument for the first time in a post-submission letter under the guise of a request for further briefing did not seem to trouble the District Court, neither did it trouble the Second Circuit Court of Appeals, as we'll see later.
8. (Joint Appendix at 177. Groden v. Random House, Inc., et al., 61 F.3d 1045 (2d Cir. 1995)(Docket No. 94-9100))
9. Joint Appendix 184-352. Groden v. Random House, Inc., 61 F.3d 1045 (2d Cir. 1995) (Docket No. 94-9100) and the videocassette enclosed in an envelope attached to Document 19, Groden v. Random House, Inc., et al., 1994 WL 45555, 1994 U.S. Dist. LEXIS 11794, 32 U.S.P.Q.2d 1266, 1994-2 Trade Cas. P70,702, 22 Media L. Rep. 2257 (S.D.N.Y. Aug. 23, 1994)(No. 94-Civ. 1074). (see also, Respondent's Exhibit 5 and the videocassette submitted to the U.S.D.C.-S.D.N.Y. Grievance Committee in Matter of Roger Bruce Feinman, Docket No. M-2-238.)
10. This case would have been for me to try, not Mr. Groden. Consistent with my duty to exercise independent judgment on behalf of my client, the evidentiary showing that we wished to make in opposition to summary judgment was entirely my work product and responsibility -- conceived, ordered and compiled by me based upon my own studies of the Kennedy assassination during the past 30 years, and Mr. Groden merely assisted me in editing a videocassette of exhibits; consulting with me about the contents of his affidavits; and reviewing and signing the affidavits that I drafted for him, adding a few of his own personal touches as he and I felt appropriate.
11. In re Charge of Judicial Misconduct, No. 94-8563 (Jud'l. Council of the 2nd Cir.).
12. Brief for the Appellee Committee on Grievances of the United States District Court for the Southern District of New York, dated July 10, 1998, at p. 13, U.S.C.A.2d (Docket No. 97-6064).
13. Id. at 21, n. 10.
14. Stephen L. Carter, Integrity. Basic Books, New York: 1995
15. Sissela Bok, "Lying: Moral Choice in Public and Private Life." Second Vintage Books Edition (1999) at 158.
16. See, e.g., The New York Daily News, Saturday, January 27, 1996, p. 5.
17. The New York Times, March 29, 1996, p. B1,4
18. Joint statement of Jon 0. Newman, J. Edward Lumbard, Wilfred Feinberg, and James L. Oakes, former chief judges of the United States Court of Appeals for the Second Circuit, March 28, 1996.