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May 31, 2009

Examining Judge Sotomayor's criminal justice record

Among the extraordinary number of article about Judge Sotomayor linked at How Appealing, I just discovered this pieceby Michael Doyle of McClatchy Newspapers headlined "Sotomayor's record reveals she's far from soft on crime."  Here are some notable excerpts:

Before her Supreme Court nomination, Sonia Sotomayor put some crooks in prison and cut others some slack. 

She's confronted killers and empowered police. She has also sympathized with inmates and challenged prosecutors. While tilting liberal in some areas, Sotomayor's five years in the Manhattan district attorney's office and 17 years on the federal bench appear to place her near the center in criminal law matters.  "She's a moderate," said Judge Guido Calabresi, a colleague on the 2nd Circuit Court of Appeals.

Like her colleagues, Sotomayor faced her share of sketchy prisoner appeals and complaints about lengthy sentences. More often than not, she agreed with the government's position. On substantive law enforcement powers, too, she's pleased police with rulings that, for instance, have upheld certain warrantless searches.

A McClatchy review of Sotomayor's appellate decision-making reveals her criminal-law inclinations.  Of 90 criminal law-related cases considered by an appellate panel on which Sotomayor has served since January 2002, she's sided with the government 65 times and prisoners and defendants 25 times.

More telling may be the company she keeps.  Whether she's ruling for prosecutors and prison officials or for inmates and defendants, Sotomayor is nearly always in the majority. Among the cases McClatchy reviewed, Sotomayor dissented on a defendant's behalf only once. Overall, she's a team player on criminal law matters — undercutting one potential Republican line of attack.  "She's the opposite of an activist judge," Calabresi said.

If Judge Sotomayor truly is "the opposite of an activist judge" in the criminal justice arena, she may end up battling Justice Scalia in major non-capital criminal cases.  As highlighted by his work for the Court in case ranging from his 2004 double doozy of Blakely and Crawford to his more recent work in Heller and Montejo, Justice Scalia probably should be seen as the poster-child of an activist judge in the criminal justice arena.

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

May 31, 2009 at 12:35 PM | Permalink


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I'm all for Sotomayor but I worry about the death of the Apprendi revolution. Souter arguably kicked it off with his dicta in Jones that became Apprendi's holding.

We know Alito hates these lines of cases but what does Roberts think? He joined Scalia's dissent in Oregon v Ice.

Overall, I don't think Sotomayor will do much to curtail the curtailment on criminal procedure rights. She won't provide a vote to end the exclusionary rule, but otherwise I'm lukewarm.

Posted by: Applekeys | May 31, 2009 4:42:46 PM

Calabresi is an extreme left wing ideologue, whose mouth is out of control. He compared the 2000 election of Bush to that of Hitler in 1933. He is goofy. His endorsement of Sotomayor, disqualifies her per se, his being a Yale indoctrinated America Hater. She is a member of La Raza, a Mexican supremacist organization.

Blacks will suffer first, at her hand. Blacks are enduring violent ethnic cleansing at the hands of Mexican, paramilitary illegal alien gangs. They have the forbearance and protection of the left wing Mexican American mayor of LA. One guess as to his profession. This lawyer is doing nothing about ultra-violent illegal alien gangs killing random black folks to empty entire blocks of them. He is likely impeding the police response to this ultra-violent, extremely threatening development. This violent campaign of lawyer enabled ethnic cleansing of blacks has succeeded in dropping the LA black population by 50%.

Jews will follow. It is not only a racist organization, but an anti-semitic one. The standard complaints of Jew economic hegemony over the LA economy have started, as they always have when the anti-semite begins his time worn dreary campaign.

Eventually all whites will suffer at her hand. The Democrat Senate will be handing over enormous power to an agent of La Raza.

Posted by: Supremacy Claus | May 31, 2009 6:19:39 PM

s.c., you forgot to mention that 30 days after SotoMayhor's confirmation, the earth will spin out of its orbit into the sun.

Posted by: anon | May 31, 2009 8:21:59 PM

Roberts has bought his ticket to Apprendi-land, joining the majority in Cunningham v California in holding California's sentencing system violated the Sixth Amendment. He even joined the majority's chastizing of Alito for not getting on board. Actually, in my opinion, Kennedy was partway on board.

So, however, Sotomayor votes, there is still a 5 to 4 majority for Apprendi.

bruce cunningham

Posted by: bruce cunningham | May 31, 2009 8:23:13 PM

one other comment. I don't believe Souter kicked off the Apprendi revolution. The seeds were planted in Justice Stevens' dissent in McMillan v Penn. The Apprendi majority opinion by Stevens is, in my opinion, his vindication for his dissent in McMillan.

Posted by: bruce cunningham | May 31, 2009 8:26:12 PM

Anon: Thank you. I did forget that.

Posted by: Supremacy Claus | May 31, 2009 8:42:47 PM

Prof. Berman refers to non-capital cases. Clearly Scalia's votes show a substantial divide between capital and non-capital cases. (I'm sure he has voted for relief for a capital defendant, but I can't think of one.) I agree that Sotomayor may be centrist/government-friendly on non-capital cases. I wonder if how she will come out in capital cases?

Also, most, though not all, of her "government-frinedly" rulings so far have presumably involved friendliness the federal government. Will she be willing to cut state governments as much slack as she cuts the feds? Or will she be deferential to the feds but tough on the states?

Posted by: Anon | Jun 1, 2009 10:37:32 AM

Not much here for critics of the anything-goes "justice system" to feel good about.

Winking at the few remaining restraints on cops and bending to the will of the mind-numbingly powerful feds is what I expect from right-wing political hacks already serving on the court.

Obama continues to disappoint.

Posted by: John K | Jun 1, 2009 12:37:01 PM

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