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July 16, 2009

It's a bird! It's a plane! ... No it's Sotomayor!!!

The title of this post is inspired by the headline of this new commentary at CNN, "Sotomayor the crime fighter."  The commentary is by Anthony S. Barkow, the executive director of the Center on the Administration of Criminal Law at NYU School of Law, and here are excerpts from an effective piece:

If she is confirmed, she would be the only justice with experience as a local prosecutor. For five years, Sotomayor was an assistant district attorney in Manhattan. In that position, she interacted with some of the poorest, most troubled residents of New York and handled matters ranging from shoplifting, prostitution and petty drug offenses to robberies, child abuse and murders.

Sotomayor's experience on the front lines in a big city's fight against crime will bring a much-needed perspective to the court.  Only Justice Samuel Alito has any real background at all in criminal law. He was an assistant U.S. attorney and was later U.S. attorney in New Jersey.

It's quite likely that, as a result, Alito may have disproportionate influence on his colleagues in criminal cases because he can refer to that experience.  But Alito was never a local prosecutor and has deep exposure only to federal criminal law.  Federal criminal cases make up only about 6 percent of all criminal cases, and they typically involve complex white-collar crimes and large-scale narcotics trafficking.

Federal prosecutors do not typically see the day-to-day carnage in neighborhoods from murders, rapes, burglaries, robberies and assault, or interact with the victims of those crimes.  Nor do they see low-level vice crimes such as prostitution, small-time drug deals or gambling.   The other justices are even further removed from the realities of street crime....

Sotomayor would bring a much-needed dose of reality when it comes to criminal law issues.  It is all too easy for someone who has not spent time working on these issues to caricature them.  For conservatives, the risk is assuming all crimes are a failure of personal responsibility that lead to serious breaches of public order and demand incarceration and a tough response. For liberals, the risk is seeing every defendant as a victim of poverty or society's failures.

The reality, as Sotomayor knows well, is far more complicated. She has seen the human condition up close and personal. She knows the pain of victims and has looked into the eyes of defendants who have committed unspeakable acts with no remorse and are unredeemable. She has also seen defendants who need treatment and jobs, not prison.  Many of these individuals may have committed petty crimes, such as shoplifting or drug possession, to feed an addiction.

This interaction with the criminal justice system also showed Sotomayor on a daily basis just how powerful the state is and the tragedy that is every single criminal case.  In no other area is government more intrusive.  This is the power to lock someone in a cell, or even to take away life.

Sotomayor's experience shows her that this government power is sometimes necessary -- and sometimes isn't.  She also knows that, in every criminal case, people suffer, and not just victims and defendants.  Family members, children and entire communities pay the price when we send away too many people for too long or fail to pay attention and don't provide neighborhoods enough protection.

One never knows how personal experience will translate to life on the bench.  But Sotomayor's experience in a big-city prosecution office would likely to make a difference on a bench that deals with crime every day but has very little real-world exposure to it.

Some prior posts on Judge Sotomayor and her criminal justice record:

UPDATE:  Scott at Simple Justice has some notable reactions to this commentary here.

July 16, 2009 at 05:30 PM | Permalink


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This is the most intelligent thing I've heard/read about Sotomayor's nomination to date.

Posted by: lawyer | Jul 16, 2009 6:44:14 PM

This vile human being will be making law for the nation. This racist, sexist, out of control, America hater, Mexican supremacist, with its unbearable Bronx accent, world view, and entitlements will be a waking nightmare for the nation. The public will deserve all that it gets. The economy will get crushed by exploding liabilities. Crime victimization will explode as she votes to loose millions of vicious predators. Terrorists will do very well, and return to attack us.

One good thing. She will be so disgusting and sickening, she will induce an uprising in the Congress to begin the first of many impeachments of these Justices for their decisions, and not for any collateral corruption. All need removal. All are a threat to the survival of the nation because all have lawyer rent seeking as their only value.

Her decisions will enable a major terrorist attack. It will then be possible to control the lawyer, and by Amendment to exclude the cult criminal from all benches, all legislative seats, and all responsible policy positions in the Executive Branch.

I welcome her confirmation as a turning point into an extreme, unbearable direction, and a great thing for the nation.

Posted by: Supremacy Claus | Jul 16, 2009 11:12:20 PM

Looks like Supremacy Claus forgot to take his meds today...

Posted by: Res ipsa | Jul 17, 2009 9:20:09 AM

I'm surprised you haven't posted anything yet on Sessions's "we're going to do that crack cocaine thing."

Posted by: Chris | Jul 17, 2009 1:11:26 PM

A line from a police group's endorsement of Sotomayor is troubling: She "went out of her way to stand shoulder to shoulder with the police when New York needed tough, strong prosecutors."

There was more: She "prosecuted cases others rejected...cases (based largely on) circumstantial evidence, with statutes ruled unconstitutional at one level..."

Whether her prosecutorial zeal was lauditory or scary is debatable. Yet this glimpse of the former prosecutor makes it somewhat more difficult to envision Justice Sotomayor walling off her biases (as she testified she would) when she delves into criminal cases.

It's profoundly disappointing Obama squandered a rare chance to begin reversing course of the court to instead make an identity politics-as-usual nomination.

Posted by: John K | Jul 17, 2009 3:03:57 PM

Chris: I did not see the Sessions quote. When did it happen? Comments notwithstanding, we've all been waiting a long time for a crack/powder fix. I'll believe it when I see it

Posted by: Doug B. | Jul 17, 2009 3:15:44 PM

See, e.g., http://rightcoast.typepad.com/rightcoast/2009/07/do-that-thang-tom-smith-.html

According to the SCOTUSblog live-blog, it happened at 3:20, during the witnesses.

Posted by: Chris | Jul 17, 2009 4:16:01 PM

See, e.g., http://rightcoast.typepad.com/rightcoast/2009/07/do-that-thang-tom-smith-.html

The SCOTUSblog live-blog tells me it was at 3:20, during the witnesses.

(Sorry if this posts twice--I think Chrome isn't working with comments these days, but it might've just been delayed.)

Posted by: Chris | Jul 17, 2009 4:19:27 PM

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