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May 26, 2009

Notable background parallels between Judge Sotomayor and Justice Alito

Though a lot is likely to be said and written about how different SCOTUS nominee Sonia Sotomayor is from other members of the Supreme Court, I am struck by some surprising background parallels between Judge Sotomayor and Justice Samuel Alito.

Specifically, after growing up relatively modestly, both Judge Sotomayor and Justice Alito attended Princeton University and then went directly on to Yale Law School.  And, like Justice Alito, Judge Sotomayer's first big job was as a prosecutor — though Justice Alito worked in the federal system as an assistant US attorney, while Judge Sotomayor was an assistant district attorney working under the famed Robert Morgenthauin Manhattan.  In addition, both Judge Sotomayor and Justice Alito were first named (at quite a young age) to the federal bench by President George H.W. Bush — though Justice Alito went straight to the Third Circuit, while Judge Sotomayor was placed on the SDNY.

So, while everyone else talks about how different Judge Sotomayor is from other Justices, I will be thinking about what the notable parallels between Judge Sotomayor and Justice Alito — in particular their shared history as prosecutors — might mean for the criminal justice side of the SCOTUS docket.

Prior post on the SCOTUS nomination of Judge Sotomayor:

May 26, 2009 at 09:27 AM | Permalink


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Sotomayor will be a reliable liberal vote on everyhing. That you can bank on.

Posted by: federalist | May 26, 2009 10:03:23 AM

Um, federalist, have you actually read any of her background? (Pause.) I thought not. Anyhow, let me update you. Among the plausible candidates for the job, she is less liberal (i.e., more moderate) than most. She isn't the liberal equivalent of Scalia.

Obviously she isn't a conservative either, but you had no right to expect that she would be. When you consider the majority Obama has in the Senate, she is nowhere near as liberal as he could likely have gotten away with. You should actually be relieved.

Posted by: Marc Shepherd | May 26, 2009 11:29:38 AM

SCOTUSblog has summaries of her opinions. With most, I can't tell if she is a conservative or a liberal. With many, she seems to lean to the conservative side, just like Obama.

Posted by: George | May 26, 2009 11:37:33 AM

yes, *sigh*...the one time i would actually like to agree with federalist, and i can't. bummer.

Posted by: pubdefender | May 26, 2009 11:49:56 AM

Federalist, at least as to criminal justice issues, you should be doing backflips. It appears that the best case scenario (from a defense/progressive perspective) for Sotomayor on these issues is to be another Breyer. (Worst case: Alito.) Not what progressives, and particularly the defense community, were hoping for out of a Democratic president with a de facto filibuster-proof Senate.

I guess that is just what Marc Shepherd said. But I wanted to say it myself. Consider it therapy. I am not happy with Obama. Flashback to some of Clinton's least (jurisprudentially) inspiring choices (at least he had the excuse of a difficult Senate). A tug of war with only one side actually pulling is no fun.

Posted by: Anon | May 26, 2009 11:54:12 AM

Scotus blog has a definite left wing bias. I don't know if they are cherry picking opinions. However, all her decisions favored the prosecution.

I especially oppose the exclusionary rule because it negates the truth. She chose to not exclude evidence because of an erroneous outstanding arrest warrant in a police database .

Posted by: Supremacy Claus | May 26, 2009 12:15:09 PM

Princeton and Yale Law.

Absolute, automatic disqualifiers. All Ivy grads are Hate America freaks.

They should be excluded from all responsible government positions per se. I do not distinguish by political affiliation. They are all the same. They may have high IQ's, but all believe in growing government. None has common sense. And as far as the real world of people, they are grossly mentally retarded. Someone misled them into thinking their judgment is better than that of others. The government does nothing well because of their incompetence, and their running it. See the Presidents of the 20th Century, uninterrupted, unmitigated catastrophes for our nation.

Their educations and academic achievements are lesser than those of grads of the Big Ten. None has an original thought because they are book worms, and they had no real world responsibility. They hire away people who have achieved, and then they rot there.

She may qualify as a law prof, however.

Posted by: Supremacy Claus | May 26, 2009 12:36:09 PM

Count me among the liberals that detests this pick. It is point blank pay-back to the identity wing of the Democratic party. As a political matter, I get it and it doesn't surprise me at all. But it goes once again to put the utter and total lie to the notion that Obama is somehow a different type of politician than the rest. He's worse, actually. At least Bush talked as well as acted like a God-damn dufus. Obama is more corrupting precisely because of all pretty but meaningless words.

Posted by: Daniel | May 26, 2009 12:37:41 PM

Republicans should go easy or support her. Without a huge lawyer gotcha, she will breeze through for fear of an accusation of sexism or racism. Hey, Dan, you are opening yourself to those.

At a realistic level (as opposed to the world where I usually operate), she is a good, and politically savvy choice.

Posted by: Supremacy Claus | May 26, 2009 12:48:13 PM

SC. I agree, she is a politically savvy choice. Unfortunately that phrase now means "slick Willy" and not "for the good of the Republic."

Posted by: Daniel | May 26, 2009 1:08:58 PM

Daniel, if you think Judge Sotomayor is not good for the public, then what words do you use for the really bad choices, like Harriet Meiers?

Posted by: Marc Shepherd | May 26, 2009 1:25:50 PM

"Anyhow, let me update you. Among the plausible candidates for the job, she is less liberal (i.e., more moderate) than most."

Well, given the choices . . . .

In any event Marc, I have read up on her. But all you really need to know is that Obama picked her. He's not stupid--he's not going to pick a reverse Souter. And as for Sotomayor's quality as a judge, all you need to do is look at how the 2d Circuit panel dealt with the Ricci case. Defend that. (Pause). Oh you can't.

Posted by: federalist | May 26, 2009 2:21:55 PM

Miers was awful. A crony pick. Yuck. Fortunately, we hit a home run after that foul ball.

You know, Marc, I have read about Sotomayor. She tried to expand Bivens and got a pretty nasty slapdown. But all you really need to know about Sotomayor is her participation in the panel decision that tried to bury the Ricci case. Defend that. (Pause). Thought so. You can't.

Posted by: federalist | May 26, 2009 2:25:43 PM

Yeah, but Federalist, there is no such thing as a home-run justice. I mean, even Scalia and Thomas have cast votes the Right disagrees with. Can you name a judge with a lengthy track record that any president (even a Republican) could pick, who wouldn't have been on the "wrong side" (as you define it) of some decision or other? Then add the requirement that, since it happens to be a Democrat making the decision, you're not going to get Robert Bork. Could you have done much better? I don't think so.

Posted by: Marc Shepherd | May 26, 2009 2:33:31 PM

Very inspirational story. Anybody who rises from humble beginnings to a Supreme Court nomination should be commended.

Posted by: Article Marketing | May 26, 2009 2:39:06 PM

But that's not the standard, Marc. The standard is whether the law will be followed, without empathy favoring one litigant over another. I think Scalia does his level best to ascertain the law and apply it, as does Alito. That I may not agree all the time is simply irrelevant. I used to do the law clerk thing, and suffice it to say that there were plenty of times where I did not agree with the results. But that wasn't really my job, was it? Does anyone think that Sotomayor will apply the law even-handedly?

So Marc, care to defend Sotomayor's help in burying the Ricci case? Come on--you can do it.

Posted by: federalist | May 26, 2009 2:46:10 PM

Federalist, I think all nine Justices, not just Scalia and Alito, do their level best to ascertain the law and apply it. I know that some conservatives believe that only fellow-conservatives are capable of doing this, but they are wrong. Even where the Court reaches the wrong decision according to my understanding of the law, I believe that all nine, not just four or five, are doing precisely as you say: ascertaining the law and applying it.

I know there are some who believe that every case has one correct answer, and if you don't reach that answer, you're either an idiot or "legislating from the bench." As you seem to subscribe to that view, it is no surprise you would find Ricci indefensible.

Posted by: Marc Shepherd | May 26, 2009 3:05:55 PM

Marc. I'd take Harriet Meiers over this chick any day of the week. At least HM was not another god #$%! judge.

Posted by: Daniel | May 26, 2009 4:30:17 PM

Title VII is unconstitutional, destructive and unnecessary. The pernicious effects of discrimination resulted from lawyer enacted Jim Crow laws. Without those, the discriminatory establishment in the South would go out of business as a consequence of their prejudice. The market would impose the death penalty on the discriminatory business. Jim Crow prevented that.

Title VII serves to oppress the public and all productive entities, to generate lawyer cases. It is a wholly fabricated scheme for rent seeking. First, there are no real black people in the US. Second, very dark skinned, real black people immigrants are outperforming lazy, entitled white folks as of the 2000 Census. In fact, they are establishing a new racial stereotype. See a very dark, real black person, you are getting a superior, hard working, honest, striving, intelligent, productive, mannerly person who speaks the King's English, and is thin and good looking.

Title VII was a lawyer pretext to sue productive entities.

That being said, where is the scientific validation of the lieutenant exam? Have the minority fire lieutenants performed below expectations, as a result of their lawyer coerced promotions?

Here is something this Yale Law educated lawyer will never grasp. How about data to support their sicko judicial decisions? These are ghoulish human experiments by incompetents, who know nothing but the law, imposing on the public their arbitrary personal and biased, know nothing decisions with backup by Army Airborne. The idea they can run a fire department is impossible.

What is offensive is the lawyer anti-scientific world view, with massive force to impose their will on a hapless nation, at the point of a gun. Their know nothing arrogance has no limit.

The correct ruling in Ricci is: go back, get data, come back with the data or do not come back. That is so beyond her grasp of understanding, it is like asking a fish about the weather and geography. Way above her head.

Posted by: Supremacy Claus | May 26, 2009 4:42:58 PM

I have not yet researched Sotomayor, but I do know that this is history in the making. I hope that this will be a step toward more diversity in politics.

Posted by: Chrystal K. | May 26, 2009 6:27:03 PM

Marc, just wondering, did you too get dropped on your head as a child. The issue with the Second Circuit's handling of Ricci was not the merits, but the per curiam affirmance of the District Court's non-pubbed opinion. Had you bothered to look at the case, you would have known that.

And Marc, just look at Stevens' concurrence in Baze--that's not a judge trying to get it right.

Posted by: federalist | May 26, 2009 11:07:13 PM

How will the nominee rule on the Apprendi issues or the Confrontation Clause? We need someone else to vote with Scalia and side with the criminals. Hmmm. Who is the conservative? Breyer sides with sentencing reform so he must be a liberal because sentencing reform has the word "reform" in it. Its ok with the liberals that acquitted conduct can increase a defendant's sentence? So maybe a liberal is one who wants all folks sentenced alike and guidelines make that happen, so its kind of a socialism in sentencing. Liberal and conservative labels do not seem to mean a lot here.

If Obama would appoint someone who favors letting the jury decide punishment then I would be in favor of that someone.

Posted by: mpb | May 27, 2009 10:01:11 AM

I agree with mpb. I cannot comprehend how the Sixth Amendment requires a jury trial--except for previous convictions, uncharged conduct, ACQUITTED CONDUCT, and all the other myriad methods the feds use to administer an exploding sentence. . .

Posted by: Mark#1 | May 28, 2009 1:49:50 AM

mpb and Mark#1, in Virginia, the juries do decide punishment - the net result is that there are very few (if any) jury trials, because the defendants know it is not in their best interest because the juries tend to sentence people much more harshly than the sentencing guidelines in Virginia (which are not mandatory but judges generally will follow them).

Part of it is due to the way that the statutes are written in Virginia - to cite one example - while the plain language of the robbery statute seems to call for a minimum sentence of 5 years (the sentence for robbery is 5 to Life (which in VA means Life Without Parole), the guidelines can call for as little as "Probation/No Incarceration."

Jury based sentencing sounds good in theory, but beware of what you wish for - once Virginia adopted it, the number of jury trials dramatically decreased - in some cases, almost disappeared entirely. Often, because of the way the Virginia statutes and advisory sentencing guidelines are written, the Commonwealth can completely eliminate the right to a trial because the Commonwealth can demand a jury trial under Virginia law - the combination of a potential for a draconian sentence and often having guideline rates set below the stated statutory minimum sentence, often will lead the defendant to plead guilty to avoid the risk.

Yes, sentencing based on acquitted conduct is unamerican, but beware of totally jury based sentencing

Posted by: Zack | May 28, 2009 10:30:56 AM

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