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May 26, 2009

Some very early, very brief sentencing reflections on Judge Sotomayor

Though I doubt I will do too much SCOTUS nominee blogging at least until the Senate confirmation hearing, I cannot resist some very early, very brief sentencing reflections on Judge Sonia Sotomayor.  So here goes:

1.  Judge Sotomayor has personally sentenced federal defendants as a federal district court judge, and did so for a number of years when the guidelines were mandatory.  I do not know if we should try to read much into her record as a federal sentencing judge in the 1990s, but the mere fact that she has a record as a federal sentencing judge sets her apart from every Justice to serve on the Court in my lifetime.

2.  Judge Sotomayor has personally experienced the entire Apprendi-Blakely-Booker-Gall change in federal sentencing as a federal circuit court judge.  And, six months ago, Judge Sotomayor wrote a notable separate opinion in US v. Cavera, No. 05-4591 (2d Cir. Dec. 4, 2008) (available here) (Sotomayor opinion starts at page 63 of pdf), in which she explains her vision of the post-Gall world.

3.  Judge Sotomayor does not have much personal experience with death penalty issues because very few capital cases ever come before the Second Circuit.  Because the death penalty is a big part of the SCOTUS docket, her potential new job will give her a new need to think a lot about the modern administration of capital punishment.

4.  Judge Sotomayor, assuming she is confirmed, will have to jump right into the dynamic Eighth Amendment debate that will surround Graham and Sullivan, the two juve LWOP cases from Florida recently taken up by the Supreme Court.  In her very first term, she could have a profoundly significant role in a profoundly significant part of the Supreme Court's criminal constitutional jurisprudence.

Prior post on the SCOTUS nomination of Judge Sotomayor:

May 26, 2009 at 01:59 PM | Permalink


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Are you kidding me?
Is this the best republicans have?

What about Clarence Thomas on death penalty. Give me a freaking BREAK. Do us a favor and take a seat.

Posted by: Take a Seat | May 26, 2009 2:25:45 PM

Is what the best Republicans have, Take a Seat? What Republicans are you referring to? None are mentioned in the post.

Posted by: Kent Scheidegger | May 26, 2009 2:42:24 PM

The more I find out, the less I like about her. The latest being her Cavera opinion.

Posted by: not happy | May 26, 2009 3:15:26 PM

Clarence Thomas? Huh?

I do think it will be interesting to see how SS reacts to the capital docket. Though she is an ex-prosecutor and not exactly the darling pick of the criminal defense bar in general, she might be surprised when she examines in detail the litigation histories of the cases (still) coming out of the death-belt states, and I am curious what her reaction will be.

After all, she grew up in NYC with no death penalty, she has been a judge in federal court, where thorough procedural protections are usually observed and taken very seriously before sentencing someone to even a few years in prison, and she is used to a legal environment (NYC) where there is generally a zealous defense presence. I wonder if she will be slightly shell-shocked by a wave of state-court records where death is imposed (often on minority defendants) in a comparatively summary process with almost no defense representation.

(And, no, I'm not saying all state courts are of the kangaroo variety, racist, inept, etc. But some state proceedings lean toward those descriptors, and those are the proceedings disproportionately likely to be paraded before the Supreme Court.)

Posted by: Anon | May 26, 2009 7:53:09 PM

Regarding the juvenile LWOP cases, I don't know how much you can read out of this if anything, but Sotomayor wrote a concurrence/dissent in a 2004 Fourth Amendment case involving juvenile detainees -- NG v. Connecticut, 382 F.3d 225 (2nd Cir. 2004). The case actually bears striking parallels to this past term's case in which a 13-year-old girl challenged her strip search by school authorities. In NG v. Conn, juvenile detainees challenged strip searches conducted on them with no individualized suspicion. (The juveniles were not charged with any crime - I think they were being held as runaways, truants, or some similar "status offense".) The 2nd Circuit upheld some of the searches and found some to violate the Fourth Amendment; Sotomayor would have held that they all violated the Fourth Amendment because they all were conducted without individualized suspicion. One likes to think this indicates that Sotomayor would be (dare I say) empathetic to the special situation of juvenile offenders, but this case may not extrapolate too well as a tea leaf for the juvenile LWOP cases since the girls in this case hadn't been charged with a crime (much less convicted), and of course it was a Fourth Amendment not a sentencing issue. Still, there's some language in her opinion that suggests a more general concern for juveniles: "We should be especially wary of strip searches of children, since youth “is a time and condition of life when a person may be most susceptible to influence and to psychological damage."

Posted by: lawstudent | May 26, 2009 9:27:32 PM

Sotomayer supports reverse discrimination. She is a lousy pick. Ask the New Haven Fire fighters!!

Posted by: Anon | May 27, 2009 7:03:36 PM

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