« Interesting materials from the hearing surrounding impeachment of Judge Kent | Main | Noting differences in sentences for intra- and extra-family sex abuse »

June 5, 2009

Will Judge Sotomayor make SCOTUS less friendly to criminal defendants?

The question of this post is prompted by the this new article from the Wall Street Journal, which is headlined "Nominee's Criminal Rulings Tilt to Right of Souter."  Here are excerpts:

While Judge Sonia Sotomayor stands in the liberal mainstream on many issues, her record suggests that the Supreme Court nominee could sometimes rule with the top court's conservatives on questions of criminal justice. 

She "has contributed greatly to law enforcement in New York" as a judge, said Leroy Frazer Jr., first assistant district attorney in Manhattan and a former colleague of Judge Sotomayor.  After Yale Law School, Judge Sotomayor joined the Manhattan district attorney's office. She spent five years at the office, and handled high-profile murder and child-pornography cases.  New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee -- a byproduct, they believe, of her tenure as a prosecutor.

"The reputation of Sotomayor was that sentencing was not an easy ride," says Gerald Shargel, a criminal-defense attorney. In a 1997 trial, Mr. Shargel asked Judge Sotomayor to show leniency in sentencing William Duker, a prominent New York lawyer who had pleaded guilty to overbilling the government.  Mr. Shargel wanted Mr. Duker to be sent to an alcohol treatment program, in lieu of prison. The judge, however, sentenced the attorney to 33 months in prison, in line with the federal sentencing guidelines.

Following recent Supreme Court precedent, Judge Sotomayor tends to see relatively few grounds to overturn criminal convictions, says John Siffert, a New York attorney who taught an appellate advocacy class with the judge at New York University School of Law from 1996 to 2006.  On the trial bench, he says, "she was not viewed as a pro-defense judge."

To be sure, Judge Sotomayor has at times shown leniency toward criminal defendants. In 2001, after she had become an appellate-court judge, she agreed to preside over the drug-conspiracy trial of Sandra Carter.  The jury convicted Ms. Carter, but Judge Sotomayor sentenced her to six months in prison, far below the term that she could have drawn under the sentencing guidelines, says Edward O'Callaghan, the prosecutor in the case.  Judge Sotomayor, he says, took into account the fact that the defendant was a first-time offender who made far less money than other conspiracy participants.

Michael Bachner, a New York defense lawyer who has handled trials and appeals before Judge Sotomayor, senses a divide in her criminal jurisprudence. She can be "very tough" on white-collar defendants from privileged backgrounds, but is "more understanding of individuals who grew up in a tougher circumstance."

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

June 5, 2009 at 09:34 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Will Judge Sotomayor make SCOTUS less friendly to criminal defendants?:


How about more than quick thoughts about Cavera and her other sentencing positions, Doug? My quick thoughts are that she's in love with the guidelines, opposes Apprendi, might tip the court backward in these ways. But you're the expert, and I'd be interested in more than superficial reactions from you.

Posted by: David in NY | Jun 5, 2009 10:46:20 AM

What's the basis for your sense that she's in love with the guidelines and opposes Apprendi? Just about every CIRCUIT judge has a record that might be read this way, and I saw nothing in her Cavera opinion to suggest she was in any sense "out of the mainstream" on these issues. But, of course, when she becomes a Justice she will be in a new place with a new opportunity to take a new approach. Whether she will seems to me to be a very uncertain reality.

Posted by: Doug B. | Jun 5, 2009 12:01:25 PM

This racist judge is tough on white defendants. That great Bronx culture will be going national. If you like the South Bronx lifestyle, you will love her spreading it to the nation.

Posted by: Supremacy Claus | Jun 5, 2009 2:59:21 PM

C'mon, professor. Any fair reading of the separate en banc opinion she authored -- and which you recently posted -- reveals that she is very much of the Justice Breyer view of the post-Booker world. She wants to keep sentences more uniform through more substantial appellate review for reasonableness. However, any true believer in Apprendi or Blakey would realize that the more searching that appellate review of sentences is, the closer one gets to re-establishing the unconstitutional sentencing scheme that Apprendi and Blakely abolished. I agree with "David," I fear that by replacing Justice Souter with Judge Sotomayor, the Apprendi/Blakely majority will no longer exist. (Although Justice Roberts's vote in Kimbrough leaves me some hope.)

Posted by: anon | Jun 5, 2009 5:36:14 PM

I do not agree, anon, "that the more searching that appellate review of sentences is, the closer one gets to re-establishing the unconstitutional sentencing scheme that Apprendi and Blakely abolished." I have written a few articles explaining why (though I doubt Sotomayor has read these). I can/will blog more on Cavera if folks think that her opinion is a rosetta stone on these matters --- I think it is just a good example of a good judge trying to make sense of a scattered SCOTUS jurisprudence.

Posted by: Doug B. | Jun 5, 2009 7:35:54 PM

Racist judge will oppose the death penalty as racist:


Posted by: Supremacy Claus | Jun 5, 2009 9:27:14 PM

Sexist, racist judge belonged to feminist only club.


Posted by: Supremacy Claus | Jun 5, 2009 9:53:54 PM

To what extent is SCOTUS at all friendly to citizens accused of crimes now?

Posted by: John K | Jun 6, 2009 11:01:06 AM

The opening sentence of the article puts the paradox of liberal v. conservative and the topic of criminal justice on the table. Since there are no libetrals on the Court now- the likes of Douglas, Brennan, Black, Marshall are long gone- the new Justice has the choice of siding with moderates and consrvatives. Will she vote with "conservatives" on topics of criminal justice such as sentencing and jury trial rights? To my way of thinking Scalia is the liberal on Apprendi issues and wishes to uphold rights of defendants to have a jury decide issues such as liberty and death. Whereas, the reform zealots who wish to uphold sentencing guidelines are the conservatives and do not wish to uphold jury rights.

The Court is a collection of Harvard / Yale moderates schooled in the art of parsing phrases and bickering over small potatoes. We ahve these folks on the Court because they are the easiest types to get confirmed.

In the Senate, Judge Sotomayer would get some cover with some "conservatives", and get their votes, if she says that she agrees with Scalia on matters of the Sixth Amendment. The jackels on MSNBC will not have a clue and will think her a conservative. The folks on Fox will furrow their large wrinkled brows.

Liberal and conservative have different meanings when different provisions of the Constitution are brought forth. A states righter from the South in the 1950s could oppose anti-lynching bills and any provision grounded on the 13th, 14th or 15th amendments, and yet champion 2nd amendment rights of gun owners in the same breath. Today a guy like Jefferson Sessions can champion gun rights and if a judge does the same he/she is a good American in Jeff's lingo. But if a judge favors a remedial measure in a court order requiring an all white police department in Biloxi to hire some minorities then that judge is an "activist" and is "legislating" from the bench.

I would vote for this particular candidate but I do not have great hopes for criminal justice issues from this Court.

Posted by: mpb | Jun 6, 2009 1:03:49 PM

These Harvard/Yale are extremist in rent seeking. They would fail selling hot dogs from a cart, that being too capitalist an enterprise.

Posted by: Supremacy Claus | Jun 7, 2009 12:39:08 AM


Although I have not written a few articles explaining why robust appellate review is fundamentally at odds with Apprendi and Blakely, I have written a few judicial opinions decisions that do so. But one needs look no further than Justice Scalia's dissent from the remedy portion of Booker or his concurrence in Kimbrough for just such an explanation. Judge Sotomayor may just be "a good judge trying to make sense of a scattered SCOTUS jurisprudence," if her empathies were consistent with the principles underlying Apprendi and Blakely (and not just their outcomes), she would not have written what she did in Cavera.

Posted by: anon | Jun 7, 2009 11:25:03 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB