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July 7, 2009

"Sotomayor Seen As Moderate On Criminal Justice"

The title of this post is the headline given to this segment that ran this afternoon on NPR's All Things Considered.  Here is how the segment is described:

Analysts see Judge Sonia Sotomayor as a moderate whose decisions in criminal cases rarely differ from those of her colleagues on the federal bench.  Some say her experience as a prosecutor and her record on the bench might make her more conservative than Justice David Souter on criminal justice issues.

Some recent posts about Judge Sotomayor's criminal justice record:

July 7, 2009 at 07:34 PM | Permalink


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She averages outs as moderate. She is harsh toward white criminals. Apologizes for the law toward dark skinned criminals. She is a racist.

Posted by: Supremacy Claus | Jul 8, 2009 6:54:24 AM

If NPR says that Sotomayor is a moderate, then that means she is a nut-job liberal

Posted by: justice seeker | Jul 8, 2009 10:05:38 AM

Actually, even Newt Gingrich recently acknowledged that some of Sotomayor's rulings were reasonable—a pretty significant concession, coming from him.

The fact is, if it had been Obama's aim to nominate the most liberal conceivable jurist who could get past cloture, he could have picked someone far more to the left than Sotomayor. No one will confuse her with Edith Jones, but she is by no means the most liberal candidate available.

Posted by: Marc Shepherd | Jul 8, 2009 1:07:49 PM

She's a former prosecutor, which is pretty much all you need to know. Authoritarian disposition. Thin-blue-line sensibilities and loyalties. Solidly on the team with the win-at-any-cost crew.

She should fit in well with the clique whose political leanings make their criminal-justice votes reliably predictable before case files have been cracked. They veritably bask in the light most favorable to the government.

Justices who care about innocent or wrongly accused citizens being steamrollered by the system will probably find themselves in an even smaller minority once Sotomayor joins the court.

Posted by: John K | Jul 8, 2009 1:31:11 PM

John K --

"She's a former prosecutor, which is pretty much all you need to know. Authoritarian disposition. Thin-blue-line sensibilities and loyalties. Solidly on the team with the win-at-any-cost crew."

If you have any documentation supporting this broad-brush, hissing characterizaiton of (1) prosecutors in general or (2) Sotomayor in particular, please provide it.

P.S. "Documentation" does not mean an opinion piece in the NACDL or "Convicts Today" magazine, although I am quite sure not even the NACDL would go anywhere near as far as you have.

Posted by: Bill Otis | Jul 8, 2009 2:06:54 PM

Bill, can you tell me how to subscribe to "Convicts Today" magazine? Sounds like a must read --- along with, of course "The Prosecutors" which is available here: http://www.ndaa.org/publications/ndaa/toc_prosecutor.html

Posted by: Doug B. | Jul 8, 2009 3:07:03 PM

For documentation of (1), see all previous comments by Bill Otis.

Posted by: CN | Jul 8, 2009 3:38:58 PM

Doug --

No problem. Here it is: http://www.contoday.org/publications/we'reallinnocentbutgotsteamrolledbythefascistpigs.html

You might also be interested in "Ivy League Law Professors Today" at http://www.illp.org/publications/we'resmarterthanyouare.html

It's a joke, as you obviously knew.

Here I am trying to be nice to Sotomayor by questioning a commenter who preposterously calls her authoritarian, by virtue of her long-ago work as a NYC prosecutor, but I can't win for losin'.

I suppose that I'd vote to confirm her, on the theory that (1) elections have consequences; (2) she's about what we ought to expect from Obama; (3) she seems to be a mainstream liberal in the way that Alito and Roberts were mainstream conservatives; and (4) the executive branch should have considerable discretion in making selections like this.

Still, I will be interested in her answers as to why she thought the Ricci case was such a no-brainer as to get a skimpy one paragraph of analysis, while the Supreme Court thought it worth 93 pages of opinions. I will also be interested in what her views on "empathy" are, exactly. The nineteen white and one Hispanic firefighters in Ricci sure didn't get a lot of empathy from her. I strongly suspect "empathy" amounts to a thumb on the scale in favor of the politically correct group du jour -- a view that is antagonistic to anything that might be mistaken for the rule of law -- but as I say, I'm more than willing to wait to see how she answers, or dodges, the questions.

Posted by: Bill Otis | Jul 8, 2009 4:03:58 PM

CN --

I take it then that you agree with the characterization of Sotomayor as authoritarian. Do you?

Posted by: Bill Otis | Jul 8, 2009 4:32:36 PM

guys, she would have ruled to make prisoner disenfranchisement illegal . . . .

that ain't a moderate . . . .

Posted by: federalist | Jul 8, 2009 8:44:13 PM

What do you know, a former prosecutor wants authoritative documentation for the opinion prosecutors have authoritarian dispositions.

I could point to the small library of books that helped me frame the opinion, and I’d be happy to list dozens of titles if I thought you were actually interested.

Books including “Mean Justice; A Town’s Terror, A Prosecutor’s Power…”… or “The Tyranny of Good Intentions; How Prosecutors and Bureaucrats are Trampling the Constitution in the Name of Justice”… or “Down and Dirty Justice…” or “Mad-Dog Prosecutors and Other Hazards of American Business” or the soon to be released, “One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Lazy Judges Threaten our Liberty.” This is just a sampling.

Over the past two years I’ve stuffed a file box full of clippings and printouts of lengthy articles (yes, including some from the NACDL?) addressing prosecutorial excesses and abuses in a system that rarely holds them accountable for any of it. I could gather and send links, but I suspect I’d be wasting my time there, too.

Then there are my personal observations over 32 years as a newspaper reporter (covering courts) and editor. More recently I’ve been gathering information for a book addressing aspects of the federal justice system including the sometimes scary behavior of prosecutors. It’s what brought me to this site.

Sotomayor? What I've read brings to mind the expression, You can take the girl out of the prosecutor's office but you can't take the...

But ultimately no, Bill, I can’t prove prosecutors are authoritarians…any more than I can prove Wall Street traders are greedy. It’s just what I think.

Posted by: John K | Jul 8, 2009 11:27:35 PM

"They veritably bask in the light most favorable to the government."

John K, I am stealing this line, and you can prosecute me if you don't like it!

ps- Doug, you probably know this already, but for others who are interested in a thoughtful prisoner-created publication and might not have heard of it, the Angolite from Louisiana is always a good read: http://www.doc.louisiana.gov/lsp/angolite.htm

Posted by: Observer | Jul 9, 2009 9:58:12 AM

John K --

"What do you know, a former prosecutor wants authoritative documentation for the opinion prosecutors have authoritarian dispositions."

If the charge is that I want documentation for acerbic, broadbrush accusatons, I plead guilty. Would you think it better if I did NOT want evidence?

"I could point to the small library of books that helped me frame the opinion, and I’d be happy to list dozens of titles if I thought you were actually interested."

The titles you go on to list hardly suggest that the books are dispassionate or were written to undertake a fair-minded inquiry. They suggest instead that they were written by people who already had their minds made up, and do not attempt anything approaching balance. In short, it sounds like the library of an ideologue, not a student.

"Then there are my personal observations over 32 years as a newspaper reporter (covering courts) and editor. More recently I’ve been gathering information for a book addressing aspects of the federal justice system including the sometimes scary behavior of prosecutors. It’s what brought me to this site."

I'm glad you mentioned this. When I debate the death penalty at law schools here and there, most recently at Columbia, I frequently hear the oft-told story of "scary" prosecutors, sleeping or drunk defense lawyers and "lazy" or corrupt judges who together are making a mockery of justice. My routine answer is to invite anyone in the audience who cares to to go down to the local federal courthouse, pick out a courtroom at random, and watch for a week what goes on there. I tell them that they can make up their own minds as to whether they're seeing what people with your biases tell them they'll see, or whether, to the contrary, they see honest and common-sensical prosecutors, energetic and adroit defense counsel, and engaged, fair-minded judges. I extend the same invitation now to anyone reading these comments.

Not one time in the years I've been doing this have I had even one law student get back to me to say that your poisoned view of the system is right and mine was wrong. Not once.

I do find one thing "scary," though -- that you are a reporter. Reporters have biases like everyone else; that's just part of life. But when they go to the extremes that yours have, it's understandable that more and more people are losing faith (and interest) in what shows up in the press. Do you really think you're capable of writing an unbiased story? Or book?

"Sotomayor? What I've read brings to mind the expression, You can take the girl out of the prosecutor's office but you can't take the..."

I'm not a big one for crying sexism, but your reference to Sotomayor as a "girl" would buy you a boatload of trouble in some quarters. And it does seem to be, if not sexist, dismissive and slightly demeaning.

The main point, though, is that you decline to identify what you've read about her, so we are left to wonder. I have read articles in the NYT, Washington Post, Wall Street Journal, the Weekly Standard and National Review On-line, and on the blogs Power Line and RealClearPolitics, to name a few. They have different takes on Sotomayor to say the least, but not one of them, critical or laudatory, comes anywhere close to saying, as you have, that she's "authoritarian," and still less that authoritarianism is a characteristic of prosecutors' offices or of people who have worked in them.

As for your direct implication that I too am authoritarian (see your post at Jul 8, 2009 3:38:58 PM), it's false. Over the course of about 20 years, I argued more than 100 cases in the fedreral courts of appeals, of course using my real name. Feel free to read as many as you care to, and then get back to me with one -- just one -- in which the court said that I or anyone I was representing in the United States Attorney's Office or the Department of Justice was "authoritarian" or any such thing.

You fling these words around, I suppose because it makes you feel good to insult people you take to be less worthwhile than you are, but when it comes time to produce specific evidence, all we get is a dry hole.

Posted by: Bill Otis | Jul 9, 2009 10:27:15 AM

Observer --

You might already know this, but the line you want to appropriate is a take-off on the standard used by the Supreme Court in evaluating claims that the conviction was not supported by sufficient evidence. The line is that, on appeal, the evidence is to be viewed in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80 (1942).

Posted by: Bill Otis | Jul 9, 2009 10:46:18 AM

Otis reply


“Mean Justice…” was written by a Pulitizer Prize-winning reporter, "Tyranny of Good Intentions..." by a former WSJ editor who served in Reagan’s Treasury Department; Tyranny's co-author is a former Georgetown law prof. "Mad-Dog Prosecutors..." is a personal account by a successful entrepreneur set upon by and crushed by the "justice system" on the flimsiest of pretexts." Down and Dirty Justice" was written by a tenured Arizona State law prof after a sabbatical gig with the local county attorney's office. The author of "Crazy Prosecutors..." is a counselor to the Assistant Secretary for the Policy Directorate in the Department of Homeland Security; formerly he was an adjunct law prof at George Mason and Senior Legal Research Fellow at the Center for Legal and Judicial Studies at the Heritage Foundation.

Dispassionate? Of course. These writers and others I didn't mention were outraged by what they’ve seen in the system of which you are so proud.

Imbittered ideologues? All of them? Hardly seems likely.

Regrettably, up until a year or so before I retired in 2006 I was one of those editors who routinely tossed letters from defendants and inmates detailing what they saw as miscarriages of justice. I, too, mocked convicts who protested their innocence. So at least the “preposterous” views I express these days correspond to relatively fresh input, as opposed to life-long anti-authoritarian impulses.

My eyes began to open somewhat with Ken Starr's brutal treatment of Monica Lewinsky and her family; They opened a bit wider with the ruthless persecution and imprisonment of Martha Stewart for the crime of lying to bureaucrats about a charge that was never subsequently lodged against her.

In both instances I was astonished such things could happen in the America I thought I knew.

And now, well, there's my thick and growing clip file and notes from trials I've covered and players I've interviewed, including prosecutors.

BTW: I recently spent two weeks sitting in on a trial in Kansas City, and frankly I wish Bill’s law students had been there to witness what I saw. Two FBI agents were caught on the stand distorting facts and a third in an outright lie (all obviously intended to further incriminate the defendants). The federal charges were so vague and sweeping the jury broke from deliberations to ask if it were “possible” to acquit on one of the conspiracy charges. Prosecutors introduced as an ersatz confession an off-hand statement a shaken defendant uttered to a co-worker after FBI agents first confronted him (“I’m going to jail”). Prosecutors seemed fixated on sending to prison two bright, young guys whose only crime seemed to have been providing professional services for a guy who turned out to actually be a bad guy.

Yes, media people are biased but the ritual of objectivity (the editing process, peer review, using multiple offsetting sources, etc.) keeps most of them honest. I’ll be submitting my manuscripts to defense lawyers and at least one ex-prosecutor who’ve agreed to help.

Posted by: John K | Jul 9, 2009 1:17:03 PM

(key word omitted from beginning of 2nd graf)...Dispassionate? Of course NOT.

Posted by: John K | Jul 9, 2009 1:21:00 PM

(key word ommitted from start of 2nd graf) Dispassionate? Of course NOT.

Posted by: John K | Jul 9, 2009 1:23:24 PM

John K --

A few points:

1. You still produce not a shred of evidence that the specific people you went after -- Sotomayor and me -- are authoritarian.

2. You do not claim, much less demonstrate, that a majority or even a significant minority of prosecutors are authoritarian, nor do you even claim that the books you mention make such an assertion.

3. Your claim that Ken Starr treated Monica Lewinsky in a "brutal" manner is proof only that you don't know the meaning of "brutal." If it's brutality you want, check out the videotaped beheading of Daniel Pearl. Check out Iran's violent repression of protesters. Check out McCain's verified account of how he was treated by his Communist captors. Check out what was left of the Murrah Building after little Timmy got through with it. (And then tell us how he, too, was the victim of the "authoritarian" prosecutors you blanketly condemn).

Monica, a pampered rich girl who stayed both pampered and rich, was interviewed by Starr's people in the Ritz-Carlton in Arlington. Yes, that's the RITZ-CARLTON. A veritable dungeon, I tell you. Given her initial refusal to come clean, she was told that she could be subpoenaed to the grand jury and held in contempt if she refused to testify.

The Supreme Court said long ago that the "grand jury is entitled to every man's evidence." Is there some reason Monica was exempt from the same obligation that applies to everyone else? Is there some even quasi-rational basis for thinking that it is "brutal" to truthfully advise an important potential witness that there are adverse consequences to stonewalling and/or lying?

4. And yes indeed, what of that beleagured multimillionaire celebrity, Martha Stewart? I'll say this for you: Most of the time we hear from those sharing your general poisoned view of the system that it's designed to Oppress The Downtrodden, but you go right to the top -- Monica and Martha Stewart.


You're long on characterizations but short on facts. Thus, the people Ms. Stewart lied to are faceless, presumably not-quite-human "bureaucrats," and the result of her lying was "ruthless persecution." If the actual result was an attempt to mislead about her business practices, this escapes (or apparently isn't worth) your attention.

Are you saying she was innocent of a federal offense? That was not the judgment of the court. Do you know better? If she was guilty, as she was found to be, should the prosecution just have taken a pass on it? Why? Because lying to the feds just isn't all that important? Because she's on TV and has a boatload of money? Because the underlying conduct was not prosecuted? (It wasn't with Scooter Libby either, but I don't hear you complaining about his prosecution).

5. Your account of the Kansas City case suffers from the same deficiencies. You never tell us specifically what the charges were; you provide no fair summary (or any summary) of the evidence; you automatically construe the jury's question as proof of the "vague and sweeping" nature of the charges, ignoring the fact that it is scarcely unusual for juries to ask questions of the judge, particularly when one of the charges is about the (mostly unfamiliar to laymen) offense of conspiracy; you characterize the defendant's statement as an "ersatz" confession (God only knows how you'd characterize it if, instead of being given at the defendant's office, it was given while the defendant was in some small room at FBI headquarters); you don't purport to tell us everything he said in this confession; and of course you don't tell us the verdict.

6. As I said before, it's astounding and depressing that someone with the skewed, wildly overcooked hostile view of an entire profession (prosecutors) could be a reporter. No sensate person reading what you've written would believe for a split second that you could, or would, or did, write a balanced account of what really goes on in court.

Posted by: Bill Otis | Jul 9, 2009 2:44:05 PM

Thanks, Bill. I'm much too familiar with the light-most-favorable-to-the-government standard for Rule 29 motions, etc., as I have been on the wrong side of it enough time. I just thought the "veritably basking" language put a nice point on the perceived pro-government slant of some courts. :)

Posted by: Observer | Jul 9, 2009 5:13:48 PM

No problem, Observer. I didn't mean to patronize you. I don't know who here is a lawyer (although I gather SC isn't)!

Posted by: Bill Otis | Jul 9, 2009 7:46:12 PM

Bill --

Identifying authoritarians isn't a precise, objective exercise. But a prevailing test (Altemeyer's) is similar to the one I use: If it walks, swims and quacks like a duck it's probably a duck.

Altemeyer developed a list of traits and tendancies and the closer people match up with those traits the more likely they are to be characterized as authoritarians.

Traits on the list that seem to match up well with the prosecutors I've known, read about or seen in action include: mean-spirited, intolerant, bullying, zealous, dogmatic, moralistic, strict disciplinarians, severely punitive, pitiless, vengeful, intimidating, dominating, submissive to authority and aggressive on behalf of authority.

Can I prove you or Sotomayor or any prosecutor is an authoritarian? No. Do I think most prosecutors would score highly on Altemeyer's list? Yes.

Each of the books I mentioned provide numerous examples of prosecutors exhibiting Altemeyer's traits. My files are full of examples.

It may have been a stretch to say Lewinsky was treated brutally, particularly if the standard for brutal treatment is beheading with a dull knife. In fact I clearly recall the word that came to mind as I read details of her ordeal at the hands of Starr's team wasn't "brutal"...it was un-American.

To answer your question directly, I think it's absurd to make lying to federal agents, not under oath, a felony crime, especially since they don't record interviews as a matter of policy.

I have a lot to say about the Kansas City trial (it's a key part of the book, Martha Stewart's case and the prospects for writing a book that isn't just panned as biased but scorned as wildly skewed, overcooked hostilitiy... (assuming it draws any attention at all).

But not tonight. Tonight I'm too tired. Thanks for the exchange, Bill.

Posted by: John K | Jul 9, 2009 8:46:26 PM

John K --

OK. You're more responsive than most, that's for sure. Commenting here, for you or anyone else, is a hobby not a requirement. Enjoy the night off.

Posted by: Bill Otis | Jul 9, 2009 9:38:16 PM

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