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June 28, 2009

Should I care about being (mis?)quoted in a White House press release?

While doing a little weekend surfing, I stumbled across this press release appearing on whitehouse.gov from the Office of the Vice President (dated June 9), which seeks to champion Judge Sotomayor's criminal justice credentials.  The release seeks to marshall a bunch of evidence to support the assertion that "as a prosecutor and then on the federal bench, Judge Sotomayor has always been both fair and tough, and has followed the rule of law at every turn." 

Both the tone and substance of the press release reveals that, even in what is supposedly an new era of hope and change, the Obama Administration still thinks it is critically important to play up "tough-on-crime" talking points.  But what really caught my eye was how a quote of mine from an AP story is utilized to help make the case for Judge Sotomayor in this press release. 

Toward the very end of the press release, there is a final heading, "Experts and lawyers in the field have praised Judge Sotomayor’s approach to criminal law," and then five bullet-point quotes, including this entry: "Law Professor and Sentencing Expert Doug Berman has said: 'She certainly doesn't seem to have a pro-criminal bias and, if anything, because of her history, may have a pro-state bias.'"  On the one hand, I am intrigued and flattered that an official White House press release took note of what I had to say in this AP quote; on the other hand, as regular readers might surmise, I was not seeking through this AP quote to "praise Judge Sotomayor’s approach to criminal law."

I should note that I have added my name to a law professors letter expressing support for Judge Sotomayor's nomination to the Supreme Court.  Thus, I am not deeply troubled that my AP quote is being used in this way to help make the case for Judge Sotomayor.  But I still find the packaging a bit worrisome: apparently it is taken as a given by the White House that a possible "pro-state bias" is an approach to criminal law that merits praise.

June 28, 2009 at 07:58 PM | Permalink


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The misquote is more accurate about real views than any masking correct quote.

The state is a wholly owned subsidiary of the criminal cult enterprise that is the lawyer profession. The cult indoctrinated lawyer makes 99% of policy decisions. The elected figureheads are nearly irrelevant. Government looks out only for the interests of the lawyer profession. The government does nothing well but maintain and enforce, at the point of a gun, the lawyer rent. Now, the elected figureheads are lawyers, and not even 1% of decisions are being made for other priorities than the lawyer rent.

It would help if, in 2010, both houses revert to Republican majorities. They could impeach the President/lawyer for disqualification for office by foreign birth place. This would return the situation to the best for the public, gridlock.

Posted by: Supremacy Claus | Jun 28, 2009 8:30:45 PM

Her toughness is reserved for white defendants. Victimizers of minority members get deep apologies for sentences, and get off easy. She is a racist, in her devaluing to nothing the damage done to minority victims by the ultra-violent lawyer client.

Posted by: Supremacy Claus | Jun 28, 2009 8:41:30 PM

Doug. Have you posted a link to the letter you signed? I am curious to know your reasons for expressing support and the level of commitment you have.

I have expressed my disapproval for this nomination elsewhere and I will do so again. It has nothing to do with her race or gender but the last thing we need is another judge and former prosecutor on the bench.

Why do you think she is a good choice?

Posted by: Daniel | Jun 28, 2009 9:16:54 PM

Is the unacceptable v acceptable qualification really pro-criminal bias v pro-state bias? What does everyone really mean by those terms? Due process bias (as if that is a negative) v pro-state bias? Or is it constitutional bias (as if that is a negative) v pro-state bias? Maybe this is your chance to define the terms to what you think they should be not only for the sake of clarity, but also to take the writing of history from the Right. Grasp victory and write history by defining the terms of engagement. On the other hand, maybe pro-defendant (bleeding heart liberal?) is what you actually mean.

Posted by: George | Jun 28, 2009 10:12:23 PM

A few quick responses to the last two comments:

1. I think Sotomayor is a good choice principally because of her experience as a district court judge, which I think is badly needed at SCOTUS.

2. The "bias" I have in mind is a tendency to assume that the state's claim to exercise power over the accused individual is stronger than the individual's claim to liberty and freedom against the show of power by the state.

Posted by: Doug B. | Jun 28, 2009 10:21:40 PM

Doug -- I am no particular fan of Judge Sotomayor, but in fairness to her, I know of nothing in her record that would support the view that whe has "a tendency to assume that the state's claim to exercise power over the accused individual is stronger than the individual's claim to liberty and freedom against the show of power by the state."

It seems to me that she follows the well-justified and traditional position that the state has no power to terminate an individual's freedom unless and until that person is convicted of a jailable offense. At that point, the state has more than a mere "claim" to exercise power over the individual; it has a legal right to do so.

The general notion that we are a "free people" was not understood by the Founders, and has never been understood by serious people, to mean that there is some dark shadow over the state's right to imprison a person after he has been convicted at a fair trial of a serious crime. To the contrary, the state's right to imprison convicted criminals, for punishment, deterrence, and incapacitation, is uniformly accepted throughout the civilized world.

Posted by: Bill Otis | Jun 29, 2009 9:01:17 AM

Mr. Otis's reply illustrates the problem. There is no term for "pro-defendant," let alone a soundbite as catchy as "bleeding heart liberal," that captures the essence of what Doug means, and so it can be twisted into whatever someone wants it to mean.

But a search of the blog for "indigent" or "mandatory minimums" or "drunk driving" would seem to indicate Doug means something more like a balance of powers (effective and fair due process?) rather than a denial of the government's right to imprison.

Perhaps the recent hearing on inadequate defense for indigent defendants, or the recent comment by Justice (sorry, forget which one) on the inadequacy of language in addressing mandatory minimums would be closer to what Doug means. Doug will speak for himself, of course, but I read his interest in 8 U.S.C. § 3553(a) issues as the government should not wield more power than necessary, not that the government does not have the right to imprison.

There is no term that captures all of this and "pro-defendant" conjures up all the Right's tough-on-crime definitions in opposition leaving room for the absurd criticism that "pro-defendant" is an argument against the state's power to imprison, as if Doug meant everyone should be let out of prison now.

Posted by: George | Jun 29, 2009 11:38:25 AM

It is outrageous and certainly quite telling that the WH counts as "praise" someone stating that Sotomayor may be "pro-state" in criminal issues.

"the last thing we need is another judge and former prosecutor on the bench." I agree, but I would qualify it by saying "appellate judge."

Question: Have any of the current justices (Sotomayer included) ever represented a criminal defendant?

Posted by: DEJ | Jun 29, 2009 12:00:21 PM

Thanks, George. I think you effectively captured my drift. I also think being pro-liberty or pro-freedom may capture these ideas, though those who claim to champion these banners are often eager to sell out those accused or convicted of crimes (see, e.g., how the gun right community has tended to sell out all felons, even non-violent ones).

Posted by: Doug B. | Jun 29, 2009 12:57:38 PM

Doug, maybe the legal blogosphere could get a "Coin the Constitution" contest going, with some prizes. The best I can come up with is a spin on "traditional family values": traditional liberty values. That's not good enough though.

When their arguments are reduced to the lowest constitutional denominator, tough on crime people, left or right, do not want to amend the Bill of Rights and they value its protections. There must be a term, coined yet or not, that captures that faith in the Constitution. It would seem this would be the defense bar's number one priority if they don't like Nancy Grace slapping their cheeks pink.

Posted by: George | Jun 29, 2009 3:53:40 PM

George -- I was wondering if you could quote specific language in my post that you think is incorrect or "twisted," and explain why you think so.

I was also wondering whether you could be more specific about your statement that "government should not wield more power than necessary." What is necessary? Who gets to decide? Under what standards?

I'll concede right now that we could open the prison gates tomorrow and the world would not come to an end. In this sense, no imprisonment at all is "necessary." The more realistic question, though, is whether imprisonment advances important goals. Almost every serious person acknowledges that it does. But despite this fact, I see repeated again and again, sometimes with a good deal of venom, the idea that this is "incarceration nation," with all manner of unworthy (and false) comparisons to North Korea, Iran, Cuba, etc. This sort of sloganeering against imprisonment does not suggest any sort of refined thinking. It represents a visceral antagonism to the idea of imprisonment at all. At some level I'm sure you know this.

This is in line with the sort of thinking that sees the criminal as the victim, or as a "patient" in need of care rather than a conscious actor in need of discipline, or of the state as a bunch of rogue police/prosecutors/judges out to ensconse the undeserved priveliges of the ruling class, etc.

Just once I would like to see a defense lawyer admit that the huge majority of inmates earned their way into prison, and that society is safer with them there. But I suspect I'll be waiting a long time.

Posted by: Bill Otis | Jun 29, 2009 7:38:09 PM

Mr. Otis, I didn't accuse you of twisting Doug's word, but you did. He didn't even imply no one should be in prison or that the state's right to imprison is not "uniformly accepted throughout the civilized world." If that is ideal in all cases is debatable.

Most of those in prison, if guilty, would agree imprisonment can be just, if they were treated fairly. I believe Doug posted a study to that effect not too long ago. Again, it is not if the state should have the power to imprison, but if the laws are rational, balanced and fair from investigation to sentencing. If so, few would complain even if they do not like the sentence. Fair is fair. There is no word or soundbite for that. What is "necessary" is an open question but would you concede that some sentences go beyond what is necessary given the purpose of prisons? For example, is every California Third Strike sentence necessary for public safety?

Posted by: George | Jun 29, 2009 10:03:16 PM

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