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May 27, 2009

Noting early unpublished sentencing opinions from Judge Sotomayor

Alabama law prof David Patton, who was a federal defender in SDNY before heading south, sent me this report on a few unpublished sentencing opinions by Judge Sotomayor from the days before Booker:

I thought I'd point out two unreported sentencing opinions from Judge Sotomayor.

The first, US v. Moreno, 2000 WL 1843232, I find interesting for two reasons 1) it's a good look at her pre-Blakely/Booker take on Apprendi; and 2) it demonstrates a willingness to impose a very severe sentence in a drug case -- using consecutive sentences on multiple counts to do what she could not do directly after Apprendi (imposing a 45 year sentence based mostly on the quantity of crack at issue).

The other, US v. Sheldon, 1997 WL 793050, is a little less flashy, but offers a good look at the thoroughness of her work. In Sheldon she remanded a Magistrate Judge's sentencing on procedural grounds (a rarity) finding that the defendant had not been afforded due process where the Magistrate may have based the sentence on a disputed fact without proper fact-finding.

Prior post on the SCOTUS nomination of Judge Sotomayor:

May 27, 2009 at 08:50 PM | Permalink


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Doug, I think it an exceedingly safe bet that this hack judge will be a reliable vote for criminals. Hell, she thinks that states cannot disenfranchise felons. What a hack. Any judge who writes something that stupid shouldn't be a traffic court judge, let alone a federal judge.

Posted by: federalist | May 27, 2009 11:46:52 PM

federalist, it is comments like this one that undermine other useful things you say in this forum. Let's go through each sentence of your anti-Sotomayor rant to highlight some flaws:

1. Judge Sotomayor has NOT been a "reliable vote for criminals" during her judicial service to date, and thus I do not think it is "an exceedingly safe bet" that she will become such a vote on SCOTUS. Indeed, she is a former prosecutor and may have a criminal justice voting record as a Justice more akin to Justices Alito or Breyer than to Justice Scalia (who tends to be a much more "reliable vote for criminals" in non-capital cases than Breyer or Alito).

2. I believe Judge Sotomayor stated that she thought a law passed by Congress means "states cannot disenfranchise felons." In so doing, she stressed fidelity to statutory text: "The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created." Seems like in this case she is being faithful to the textualist principles that those on the right typically champion.

3. When you say "What a hack" it seems you really mean "She reached a result I personally do not like." To me, a hack is someone who reaches an extreme opinion based on prejudice rather than information. In other words, federalist, it is your flippant comment, not Judge Sotomayor's opinions, that reveal who is more of a hack.

4. When you say "something that stupid" it again seems you mean "something I personally do not like," and then you indicate that anyone with different views than you "shouldn't be a traffic court judge, let alone a federal judge." In our society, if/when those who agree with you win national office, they can make sure those who disagree with you do not get to be federal judges. But, since Judge Sotomayor was first nominated to be a federal judge by the first Prez Bush and was confirmed as a circuit judge by a republican senate, it seems very few elected leaders from either party share your view.

As I have said before, federalist, I appreciate your engagement in this forum. But it is hard for me to take seriously some of your other comments when your own hack tendencies show through in comments like this latest one.

Posted by: Doug B. | May 28, 2009 8:20:29 AM

It's funny that many of the conservatives who claim to detest "result-oriented" decisions are, in fact, highly "result-oriented" themselves.

The reality about Judge Sotomayor is that many liberals are disappointed. They wanted a liberal firebrand, a true counterpart to Scalia. Instead they got a left-centrist. Conservatives ought to be dancing in the streets. Sotomayor is about as good an appointee as they could have expected from a Democratic president. Given his political dominance in the Senate, Obama could surely have gotten someone far more liberal than Sotomayor confirmed.

Posted by: Marc Shepherd | May 28, 2009 9:33:44 AM

First of all, Doug, I'm thinking that Scalia is simply a vote for the Constitution. And while there are some cases where Breyer votes for the state and Scalia votes for the criminal, Scalia almost certainly votes with the state more than Breyer.

Second of all, Doug, surely you know that Sotomayor was foisted on President Bush by Daniel Moynihan so that Bush could get other judges confirmed.

Third of all, Doug, the statute in question restricts disenfranchisement "on account of race"--how in the world does conviction for a crime equate to disenfranchisement "on account of race"? It certainly isn't plain from the text, and if it ain't plain from the test, other canons of statutory interpretation come into play. And it would be strange indeed that Congress, sotto voce, wanted to smuggle into Section 2 a ban on inmate disenfranchisement when it passed specific statutes dealing with state felon disenfranchisement. How do you explain the Help America Vote Act, which contemplated state purges of felons from voting rolls? You really really clown yourself with this: "Seems like in this case she is being faithful to the textualist principles that those on the right typically champion."

Fifth of all, if Sotomayor is confirmed, then we'll see. But I'm guessing she's not going to stray from the liberal reservation too often.

Posted by: federalist | May 28, 2009 10:36:05 AM

I agree with Marc Shepherd. When I read these press releases referring to Sotomayor as a judicial activist who insists on importing her personal prejudices into the law, describing her as "the most radical of all the frequently mentioned candidates before [Obama]," a member of the "far left [who] will likely leave us with something akin to the 'Extreme Court'", etc., etc., they seem so divorced from the particular reality of Sotomayor's record that the only reasonable explanation seems to be that they were drafted weeks or months ago, with only the name of the nominee left to be filled in before distribution.

As a member of the criminal defense community, I respect Sotomayor's background, her intelligence, her moxie, her integrity; but I am scared, frankly, about her jurisprudence on criminal issues. If this is what the wingnuts say about Sotomayor, what would they say about a real progressive like Pam Karlan?

Posted by: Observer | May 28, 2009 10:46:27 AM

Observer, those who think that the states cannot bar felons from voting are left-wing radicals.

Posted by: federalist | May 28, 2009 10:48:28 AM

Federalist, I have a question for you. Whom could Obama have realistically chosen that you would have been happy with? By "realistically," I mean a plausible Democratic nominee. J. Harvie Wilkinson or Edith Jones can't be your answer, not because there is anything wrong with them, but because they are not plausible Democratic picks.

My contention is that, taking her record in aggregate, Sotomayor is about the best a Republican could have hoped for, bearing in mind that Obama is simply not going to pick Wilkinson, any more than Bush would have picked Pam Karlan. I mean, Obama has a larger majority in the Senate than Bush had when he picked Alito, which means he can pretty much have his way. If it had been his objective to pick the left-most judge that was confirmable, you could have had it a lot worse.

So tell us: whom realistically could he have picked that would have made you as happy as you can be with a Democrat in the White House.

Posted by: Marc Shepherd | May 28, 2009 12:02:49 PM

federalist: "First of all, Doug, I'm thinking that Scalia is simply a vote for the Constitution. And while there are some cases where Breyer votes for the state and Scalia votes for the criminal, Scalia almost certainly votes with the state more than Breyer."

Did our Founders really draft the Constitution so that its interpretation could only be read in favor of the State? Was the Bill of Rights really State's rights and government rights? Would our Founders be abhorred at decision after decision giving more and more power to the government at the cost of individual rights?

As long as federalist, Kent and Bill are free to frame the debate on these terms, it will never be originalist. We know no one with any political clout is in favor of criminals because not one proposes bills in any legislature that would do away with criminal law and the police, and yet that is the argument. As long as the Right is able to continue to so frame the debate, it has won; and to me, that victory disrespects the Constitution and the originalist intent, which suggest it is merely propaganda. Propaganda is never worthy of respect and we know nothing erodes freedom like propaganda does. Everything Hitler did was legal.

Posted by: George | May 28, 2009 12:15:19 PM

Marc, I don't look at judicial appointments that way. Either a judge is going to follow the law or not. When a judge does not follow the law and deliberately substitutes his own predilections for the law, that, in my view, is tyranny. The law is simply supposed to be followed. This judge felt that empathy for criminals was so important that she was willing to disrupt the democratic process. That makes her a radical hack, and an arrogant one too.

Posted by: federalist | May 28, 2009 12:17:10 PM

But Federalist, even if we stipulate that all of that is true, whom could he realistically have chosen that you'd be happy with.

I mean, there's a vacancy, and he's going to fill it with someone, and it ain't gonna be a Republican. Is Sotomayor the best qualified Democrat (but still awful), or do better Democrats exist? If the latter, then who (in your opinion) are they?

Posted by: Marc Shepherd | May 28, 2009 12:37:11 PM

Your persistent hackness, federalist, is showing through. (Again, I am defining "hack" as someone who reaches an opinion based on prejudice rather than information.) Let go through your latest comments:

1. You say "Scalia almost certainly votes with the state more than Breyer." Do you have support for this in non-capital cases? Just this Term, we have Ice and Hayes as significant examples of Scalia voting with the criminal and Breyer on the state side. Also, Scalia likely authored the per curiam pro-criminal rulings in Spears and Nelson. Going back, we also have Scalia with the criminal and Breyer with the state in the entire Apprendi-Blakely line of rulings. Like most commentators (even those who are not hacks like you), perhaps an undue focus on capital cases skews your perspective. (Moreover, in lots of non-capital cases, "simply a vote for the Constitution" is a vote for the criminal.)

2. The fact that both President Bush and Daniel Moynihan backed Judge Sotomayor shows that people a lot more informed that you do not agree with your assessment that she "shouldn't be a traffic court judge, let alone a federal judge."

3. You may not agree with how Sotomayor viewed the text in the VRA. But that just shows she does not view the text like you do, it does not mean she is not trying to be a textualist in this case. You may think Sotomayor here uses textualism as cover for something else --- just like lots of people think Scalia uses textualism as cover for something else (such as in Heller where he is textualist until he want to in dicta embrace felon gun bans). But the fact judges may use textualism in various ways and in various setting does not make them all hacks. The fact that you apparently approve of Scalia's (self-serving?) textualism and disapprove of Sotomayor's (self-serving?) textualism does make you a hack, federalist.

4. I cannot figure what happened to fourth in your list --- perhaps the left-wing radicals took it to give to felons.

5. I share your instinct that Sotomayor is "not going to stray from the liberal reservation too often." But such a concern/critique is a far cry from saying she is "stupid" "hack" who "shouldn't be a traffic court judge, let alone a federal judge." I can, however, think of others for whom this shoe fits.

Posted by: Doug B. | May 28, 2009 12:40:02 PM

Doug, you've clowned yourself. Squawking a lot doesn't unclown you. Bush was forced to take Sotomayor--get that right.

As for Scalia v. Breyer, Apprendi/Blakeley is not the only thing--see Montejo (yes a cap case, but issue is not DP), Siebert and many others.

As for "vote for criminal", that's a shot at Sotomayor, meaning that she's biased. Scalia simply, in my view, votes where he thinks the constitution leads, in other words, the state/criminal is irrelevant.

As for Sotomayor and the VRA--she's a textualist, but doesn't evaluate whether the meaning of the statute is "plain". That's weird. Come on Doug, there's really no good argument that Sotomayor was employing textualist means to ascertain the meaning of the VRA.

Marc, Ted Boehm, Indiana Supreme Court.

Posted by: federalist | May 28, 2009 1:29:48 PM

You say, federalist that "Scalia simply, in my view, votes where he thinks the constitution leads." That's fine, but others can make the exact same claim about all the other Justices, while also saying that they believe that Scalia in many settings "deliberately substitutes his own predilections for the law" -- e.g., Bush v. Gore + Heller + Blakely + Ring. And in these last three examples, one could readily accuse Scalia of viewing his own predilections as so important that he was willing to disrupt the democratic process (and he certainly could/should be seen as arrogant in the way he delivers his opinions).

In short, federlist, your core "hack" --- reaching an opinion based on prejudice rather than informed opinion --- is on full display here. And this is the point I made at the beginning: by showing off you hack nature in this thread, you make it harder for me to view anything else you say as the product of informed opinion rather than prejudice.

Please understand, I am not trying to call you names or discourage you from commenting on the blog. Rather, I am just trying to better understand your persepctive (and, since you keep your identity hidden, I can only go on what you say here). Sometimes it is clear that your persepctive is based on an informed opinion. But this thread confirms my worry that I need to apply a hack discount to most of your comments.

Posted by: Doug B. | May 28, 2009 1:54:37 PM

It's hard to dispute that Bush v. Gore was rightly decided (once they made the prudential decision to step in). Seven justices agreed on the EPC point, and the idea that SCOFLA should get to revise its view that Florida wanted to take advantage of the safe harbor seemed pretty silly.

As for Heller, I don't see the real issue. The issue of whether something is a right doesn't imply limitations on when said right can be taken away.

Scalia's opinion in Ring seemed intellectually honest, though I disagreed with it. That said, I can see the argument that the jury trial right was sacrosanct and figuring out whether the states were responding to 8th Amendment "jurisprudence" or embedding their own policies in their aggravators. (You'll all have to forgive me, I am typing this out from my memory of Ring, and Bush v. Gore too).

As for Apprendi/Blakeley, I agree with them. I actually find them unremarkable.

Once again, Doug, you hear the music but fail to catch the tune. The Constitution applies restrictions to the results of the democratic process often enough, and that's that. But what Sotomayor was doing was deeming a result (i.e., that "on account of race" picked up facially neutral practices of long standing in America) to be dictated by the "plain" language of the statute when it clearly is not where the result would have the effect of imposing millions of voters on the rolls. You'd think she'd be a little less arrogant.

In my view, Sotomayor has NO business deciding anyone's case. None. Any judge willing to toss centuries of practice on the basis of so slender a reed and in so doing deem her result to be so simple and obvious is simply unacceptable. You utterly fail to deal with that point.

This quote: "The fact that you apparently approve of Scalia's (self-serving?) textualism and disapprove of Sotomayor's (self-serving?) textualism does make you a hack, federalist." barely merits a response. First of all, you're wrong in calling Sotomayor's approach textualist as she doesn't explain why the meaning is, in fact, "plain". (Ya kinda have to do that when "on account of race" doesn't naturally pick up facially-neutral actions.) Second of all, I don't agree that Scalia's use of textualism is self-serving. And comparing Scalia's Heller decision, which after all construes language ("shall not be infringed") which is put in the Bill of Rights, to Sotomayor's unceremonious attempt at tossing centuries of practice is a litte f'in rich.

By the way, with respect to the Second Amendment, much is made of the prefatory clause. I'll just ask a question. Many states don't tax supermarket food because it's regressive. So would it be ok for a court to read into a statute generally exempting supermarket purchases from sales tax the limitation that only the non-rich would be exempt from paying? Legislatures enact statutes all the time that go beyond their purposes, so why is there this idea that the Second Amendment's effect is coterminous with its purpose. No other enactment is like that.

With respect to imposing predilections, I'd say that 8th Amendment "jurisprudence" pretty much confirms that all the libs do it, and so does Kennedy.

As for applying a hack discount to my comments. Do what you want. But when I use ad hominem, I back it up. Everyone in here knows why I have chosen to call Sotomayor an arrogant hack. And everyone knows why I have said you've clowned yourself. Sotomayor's approach in Hayden can hardly be taken as textualist, as you assert.

Posted by: federalist | May 28, 2009 3:18:03 PM

Federalist, I'm still waiting for an answer to this question:

What person that a Democratic president could plausibly nominate is qualified to sit on the Supreme Court, in your view.

Posted by: Marc Shepherd | May 28, 2009 3:30:26 PM

Ted Boehm, Indiana Supreme Court justice. Tallman (a Clinton appointee) of Ninth Circuit.

Posted by: federalist | May 28, 2009 3:38:36 PM

You know it's funny, not too many people (Doug included) seem to be defending Sotomayor's opinion in the face of my criticism.

Posted by: federalist | May 28, 2009 3:47:50 PM

Maybe federalist, that is because your criticism of Judge Sotomeyer's opinion requires no defense beyond the text of her opinion which proves conclusively that she did not say what you claim she said.

Posted by: Zack | May 28, 2009 4:47:55 PM

Some criticism is so patently ludicrous that it is best ignored. I mean, Obama doesn't go on the tube every night to debate Rush Limbaugh. It would be giving him more attention than he deserves.

Posted by: Marc Shepherd | May 28, 2009 5:21:54 PM

Zack, what are you talking about? Sotomayor thinks that states don't have a right to disenfranchise prison inmates. She bases this on a reading of "on account of race". Zack, are you going to clown yourself like you did a while back on "fighting the previous war"?

Posted by: federalist | May 28, 2009 5:31:48 PM

federalist, I think the reason "not too many people (Doug included) seem to be defending Sotomayor's opinion in the face of my criticism" is because we cannot even understand exactly what your criticism is.

You throw around terms like "hack" and "clowned" and "arrogant" while asserting that a SCOTUS nominee is so "stupid [she] shouldn't be a traffic court judge, let alone a federal judge." With all this silly talk, it is hard to figure out and focus on the precise nature of what you are saying. (It is easy to figure out that you think Scalia is usually right; but I am still awaiting a textual/originalist account for excluding felons from the Second Amendment as Scalia does in Heller)?

Meanwhile, as you call others names, you do this behind a pen name (because, I assume, you lack the courage of your convictions to reveal who you are). If you want substantive engagement, please try to better explain your precise criticism of Sotomayor's opinion (without the silly name-calling), and then we can have a real debate on the merits. Better still, reveal who you are and we can plan a webcast panel discussion in which both of us can discuss our views for all to see.

Posted by: Doug B. | May 28, 2009 6:12:16 PM

Federalist, please answer the following questions:

1) What was the procedural posture of that case?

2) What are federal judges required to assume when making that determination?

3) If the dissenters position had prevailed what would have happened next?

Posted by: Zack | May 28, 2009 6:21:44 PM

Doug, with respect to Heller, the answer is simple--that something is a right does not mean that it cannot be taken away (subject to due process concerns). Now there may be arguments that there are substantive limitations on the ability of the state to take away certain rights. I don't think Heller forecloses those arguments. Here's the quote:

"nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

The only issue here that I can see is the scope of "felons", as "felon" is a term that has expanded over the years. But I think this statement: "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment" probably allows for a court to entertain arguments about that issue.

I fail to see the issue here, Doug. And this certainly does not compare to Sotomayor's opinion . . . .

I am baffled by your insistence that I have not explained myself with respect to Sotomayor's opinion. I have stated that her analysis can hardly be called "textualist" since she doesn't explain how "on account of race" plainly covers a facially-neutral law. And without that, her claim that the statute is being re-written is just ipse dixit. But even if you could say that she took a textualist approach, Sotomayor just assumes the point at issue, which calls into question her bona fides. In any event, it's very difficult to argue that this opinion shows Sotomayor to be a textualist, as you have.

The bottom line is that I think that a judge who says that (a) Section 2 flatly bars felon disenfranchisement laws and (b) claims that result is a simple matter to get to is a liberal hack who has zero business being able to decide cases. When centuries of practice are going to be tossed, the matter ain't so simple.

Posted by: federalist | May 28, 2009 6:59:58 PM

Zack, 12(b)(6) motion, right? (I haven't read the case since it came out.) Standard for 12(b)(6) is whether under any set of facts, plaintiffs could receive relief. If Sotomayor's dissent had carried the day, then the law gets tossed--how could it not? The stats are what they are, and is a factual hearing at the District Court level going to make any difference?

In any event, Sotomayor's position is a death knell for inmate disenfranchisement. That's the bottom line. Or, Zack, do you think she subscribes to a view that you can have a prison population out of whack with the general population and not have a VRA violation? Do you? Come on. That requires a serious swig of Kool-Aid. And while I am no expert, I would think a claim based on Reitman [sp.?] v. Mulkey would suffice to ban a felon disenfranchisement law passed with invidious discrimination in mind.

Posted by: federalist | May 28, 2009 7:41:44 PM

I'll put the question back to you, Zack, can you see any set of facts, assuming Sotomayor was right, under which NY's disenfranchisement law would survive. If so, please explain how.

Posted by: federalist | May 28, 2009 7:50:17 PM

"What person that a Democratic president could plausibly nominate is qualified to sit on the Supreme Court, in your view."

Any wine besotted, puking, alcohol brain damaged bum from the gutter would immediately result in an upgrade in the logic, common sense, and clarity of Supreme Court decisions. How an Amendment excluding anyone who has passed 1L from all benches, legislative seats, and responsible policy positions in the executive?

Posted by: Supremacy Claus | May 28, 2009 10:18:06 PM

Come on federalist, the state only loses that case if their criminal justice system is in fact racist and engages in racially discriminatory sentencing and enforcement. Judge Sotomayer and the other dissenters simply said that the Voting Rights Act requires the plaintiffs be allowed to try to prove that - if they cannot prove the racial disperity is caused by discrimination or the state shows a non-pretextual race neutral reason, the state wins.

Posted by: Zack | May 29, 2009 10:32:48 AM

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