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May 30, 2009

Any predictions on how a Justice Sotomayor would approach capital cases?

This new AP piece, headlind "Death cases among early issues for new justice," spotlights that SCOTUS nominee Judge Sotomayor, though lacking a judicial record with the death penalty, has encountered the issue in at least one other setting.  Here is how this AP piece gets started:

As a director of a Puerto Rican advocacy group in the 1980s, Supreme Court nominee Sonia Sotomayor was part of a three-person committee that equated capital punishment with racism. The Puerto Rican Legal Defense and Education Fund argued in a 1981 letter to the governor of New York, Hugh Carey, that "capital punishment represents ongoing racism within our society."

Sotomayor later became a federal judge and spent 16 years on the bench without having to address the death penalty, one of the most contentious legal issues in the United States. That would change quickly if she is confirmed to the Supreme Court as its first Hispanic justice.

The court will hear arguments in three death penalty cases in the term beginning in October. All of the upcoming cases deal with claims by death row inmates and the power of federal courts to review their sentences after state courts have upheld them, not the constitutionality of the death penalty itself. Only infrequently is the guilt of the person in doubt in such cases. Most often, what the court hears are prisoners' claims of ineffective lawyers or muddled jury instructions.

Justices, however, use such cases to voice their concerns about the fairness of who gets sentenced to death and who doesn't, particularly the uneven quality of lawyers in capital cases. The decisions often find the four liberal justices on one side, the four conservatives on the other and Justice Anthony Kennedy determining who wins. Retiring Justice David Souter, whom Sotomayor would replace, generally sides with the inmates, along with his liberal colleagues.

An examination of the Puerto Rican defense fund's records did not turn up any death penalty-related writings directly attributable to Sotomayor. But her role in the group's advocacy against capital punishment is likely to be explored at her Senate confirmation hearing this summer, and should be, said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation. "It was a long time ago, so it's not anything we can say indicates her present attitudes," Scheidegger said.

Richard Dieter, executive director of the anti-capital punishment Death Penalty Information Center, said that even if Sotomayor opposes the death penalty, it would not preclude her from ruling against defendants "when that's what precedents and the Constitution require." Dieter agreed with Scheidegger, though, that where she stands on the issue now is unknown, whatever she thought about the death penalty as a lawyer in her late 20s.

Prior posts on the SCOTUS nomination and record of Judge Sotomayor:

UPDATE:  Over at C&C, Kent Scheidegger has this interesting post titled "Judge Sotomayor and the Death Penalty."  Here are its last two parahraphs:

If Judge Sotomayor is personally opposed to the death penalty as a matter of policy, that is not disqualifying provided she is very clear on and committed to the distinction between personal views and constitutionality. Justice Blackmun understood the difference when he was first appointed, and he explained it in his dissent in Furman v. Georgia. Regrettably, somewhere along the route he lost his way.

A person's views on the constitutionality of capital punishment can tell us a lot about their views on judicial review, the separation of powers, and the role of courts generally. I will explore that further in another post. For now, it is important to note that we know very little about Judge Sotomayor's views on an issue that is very important and a large part of the Supreme Court's workload. We need to know a lot more. I hope the Senators will examine the issue closely.

May 30, 2009 at 08:21 AM | Permalink


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In the Bronx, people oppose the death penalty except to kill the police or any one who offends a gang member. She may support it if the victim is a member of a lawyer privileged class on her privileged identity list, as taught to her at Princeton.

Posted by: Supremacy Claus | May 30, 2009 9:59:18 AM

It is a given she will support the death penalty for viable babies in the third trimester. Those may be executed without an ort of Fifth Amendment Due Process.

Posted by: Supremacy Claus | May 30, 2009 10:01:44 AM

Dear Kent:

Why don't you go to hell. You will be happier there than here amongst still-salvageable human beings.

Posted by: Grotius | May 30, 2009 2:35:59 PM


Wow. Obama is on the defense already. Opponents of Sotomayor "twist words".

Huh, once upon the time that was called good lawyering.

Posted by: Daniel | May 30, 2009 3:09:30 PM

Grotius, I sincerely appreciate your concern for my residence in a location of maximum happiness. However, I must conclude that your suggestion would be suboptimal. In particular, the presence of persons whose change of venue I facilitated would raise a strong possibility of unpleasant interactions.

Posted by: Kent Scheidegger | May 31, 2009 12:28:17 AM

I don't think Justice Blackmun lost his way. I think he was slowly steeped in the reality of what goes on in capital cases (discriminatory application, government misconduct, lack of remotely adequate representation, toothlessness of supposed safeguards, etc.) in most of the country and reacted in a way that respected both his moral and constitutional obligations. (And he gets extra credit for figuring this out even before DNA evidence.)

Also, agreed: Hell is a bad place for vigilantes. Too many old acquaintances.

Posted by: Anon | Jun 1, 2009 10:51:07 AM

She will get the criminal off the hook on the back end, and on the front end, lining up inadequate counsel, way ahead of time.


Posted by: Supremacy Claus | Jun 4, 2009 11:31:24 PM

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