Tag Archives: Sonia Sotomayor

Sotomayor for the Prosecution

Sonia Sotomayor’s all-but-certain conifirmation will be a notable victory for the Democrats, and a long-overdue victory for diversity on the nation’s highest court. Whether it will be a victory for criminal justice is another question altogether–and one that seems to matter little to most of her liberal supporters.

Long before her Senate confirmation hearings began, progressive politicians, lawyers, scholars, activists, and bloggers had joined together, as if in one voice, to sing Sotomayor’s praises. Beyond predictable paeans to her qualifications and her inspiring personal story, the focus of this chorus of accolades is not Judge Sotomayor’s passion for justice, her moral rectitude, or even her much-discussed “empathy.” Instead, Congressional Democrats and their allies have banded together to celebrate how thoroughly indistinguishable Sonia Sotomayor is from a Republican judge.

In their zeal to show that she is a “moderate,” Sotomayor’s liberal supporters are downplaying all her most compelling qualities, while lauding her most conservative decisions. She has rejected the majority of racial discrimination claims, they crow, and sent most immigrants packing. On criminal justice matters, she is somewhere to the right of the man she will replace, Daddy Bush appointee David Souter. The very facts that ought to make progressives cringe are instead being extolled as Sotomayor’s greatest virtues, since they are the things that render her eminently “confirmable.”

The most barefaced example of this rhetoric came on the eve of the hearings from New York Senator Charles Schumer, considered one of the Judiciary Committee’s most liberal members. Declaring Sotomayor a “slam dunk,” Schumer bragged

She has agreed with Republican colleagues 95 percent of the time. She has ruled for the government in 83 percent of immigration cases, against the immigration plaintiff. She has ruled for the government in 92 percent of criminal cases. She has denied race claims in 83 percent of the cases and has split evenly on employment cases between employer and employee.

 It was Schumer’s office that last month released its own study of Sotomayor’s 848 decisions in federal asylum cases, including those based on alleged violations of the Convention on Torture. Sotomayor ruled in favor of plaintiffs in these cases just 17 percent o the time. “These findings should put to rest any doubts about Judge Sotomayor’s fidelity to the rule of law,” Schumer said in a statement. “Even in immigration cases, which would most test the so-called ‘empathy factor,’ Judge Sotomayor’s record is well within the judicial mainstream.” In other words, being a Latina won’t make Sotomayor any more compassionate toward immigrants who face torture and death when we ship them back home.

On questions of criminal justice and criminal procedure, Sotomayor has a particularly substantial record—more than anyone else on the current Supreme Court, as her supporters have rightly pointed out, due to her career as a prosecutor, criminal court judge, and appellate judge. On this front, Sotomayor’s backers are promoting her as a tough-on-crime pragmatist with no soft spot for criminal defendants—even if they happen to be innocent.

Last month, the Wall Street Journal looked approvingly at Sotomayor’s record on criminal cases, in an article titled “Nominees Criminal Rulings Tilt to the Right of Souter.” The retiring Republican-appointee Souter has sometimes joined Court liberals in defending the rights of the accused and convicted—most recently in a January case concerning police searches and seizures. In a similar appellate case, Sotomayor had ruled in favor of the police. The Journal reported:

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….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.”

 Sotomayor had the opportunity to review many petitions for writs of habeas corpus–the basic Constitutional right to seek judicial relief from unlawful detention, which offers recourse to those who believe they have been unfairly or improperly tried or wrongly convicted. Progressives have for years attacked the Bush administration for denying habeas corpus rights to prisoners at Guantanamo and elsewhere. The Alliance for Justice, a 30-year-old coalition of progressive groups, has a special project called “Defend Habeas,” which states on its web site:

Without access to due process guarantees enshrined in the Constitution, people can be imprisoned indefinitely, without any hope of a fair trial or hearing, or even an opportunity to respond to the charges against them. …

Eliminating habeas turns our back on what it means to be an American, and advances a policy that makes us less secure rather than more secure. If the United States cannot guarantee rights to the citizens of other countries, what guarantee do Americans have that their rights will be respected by the rest of the world? We live in a country of laws, not of men, and in order to stand up for that tradition, due process must be restored.

 Yet for those incarcerated in U.S. prisons, the main obstacle to accessing these rights is not anything concocted during the Bush years. It is the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), introduced in the wake of the Oklahoma City bombing, passed with overwhelming bipartisan support, and signed into law by Bill Clinton in an election year. The AEDPA severely restricts the ability of federal judges to grant writs of habeas corpus and offer judicial relief to the convicted, even when there is substantial new evidence of their innocence.

Sonia Sotomayor rendered her appellate decisions under the restrictions imposed by AEDPA, and was subject to its tenets. But as a handful of defense lawyers have pointed out, mostly on personal blogs, she seemed more than content to abide by those restrictions. One blogger calls her a “dead bang loser for the defense.” The blog of the conservative, law-and-order Criminal Justice Legal Foundation, agreed, and praised Sotomayor on these very grounds:

[AEDPA] is bitterly resented by many federal judges….Many, many federal judges have attempted to evade it, and a few have gone so far as to declare it unconstitutional. All of the latter have been reversed [by the Supreme Court]….Throughout [Sotomayor’s] opinions, I do not see the hostility to AEDPA that I have seen in so many opinions in the lower federal courts. The statute is largely applied as written and as intended.

 A more surprising affirmation of Sotomayor’s record in this area came from the Alliance for Justice, sponsors of the Defend Habeas project. In a letter to Senate Judiciary Committee chair Patrick Leahy and ranking member Jeff Sessions, the AFJ wrote:

Judge Sotomayor’s criminal justice opinions reveal the temperament of a former prosecutor who understands the real-world demands of prosecuting crime and fundamentally respects the rule of law. When reviewing the constitutional rights of criminal defendants, Judge Sotomayor closely follows Second Circuit precedent and dispenses narrow rulings tailored to the particular facts of the case. Exhibiting a moderate and restrained approach to judicial review of trial process, she focuses on procedural issues, and she has resolved the overwhelming majority of her cases without reaching the merits of a defendant’s claim. Significantly, she frequently concludes that trial defects resulted in harmless rather than structural error. Her restrained anner is most evident in her habeas corpus decisions, in which she strictly adheres to the procedural requirements of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), often dismissing habeas petitions as nexhausted or time-barred under AEDPA, even when faced with potentially credible—and, in one instance, ultimately proven—claims of actual innocence. While the Alliance for Justice believes that, where possible, judges should reach the merits of a defendant’s constitutional claims and recognize the damage that a trial court error inflicts on the integrity of a criminal proceeding, we nonetheless respect Judge Sotomayor’s moderate approach and commitment to preserving the delicate balance between the government’s ability to prosecute crime and an individual’s constitutional rights.

The AFJ’s report, and its upbeat press conference on Sotomayor’s criminal rulings, were widely reported, under headlines like “Liberal Group Praises Sotomayor’s Criminal Justice Record,” and “Sotomayor ‘Tough’ on Crime, Report Says.” It all begs the question of whether habeas corpus rights warrant the most fervent and absolute defense only when they are violated by Republicans, and not when they are dismissed by Democratic court nominees under laws signed by Democratic presidents. 

The most powerful statement on this issue has come from Jeffrey Deskovic, who was wrongfully convicted of rape and murder at age 17, and spent 16 years in prison before being exonerated by DNA evidence. His earlier appeals had, in 1997, reached New York State’s highest appeals court, where his petition for a writ of habeas corpus was denied because his lawyer had filed it four days late (on the erroneous advice of a court clerk). The time restriction had been imposed by the then-new AEDPA.

Deskovic then appealed his case to the Federal Second Circuit, where he encountered Judge Sonia Sotomayor. As he described it in a piece on Alternet last week, his lawyer “gave three reasons why Judge Sotomayor and her colleague should overturn the procedural ruling: 1) Upholding such a ruling would cause a miscarriage of justice to continue; 2) Reversing the procedural ruling could open the door to more sophisticated DNA Testing; 3) The late petition was not my fault or my attorney’s.” But the judges refused to reverse the ruling. “The alleged reliance of Deskovic’s attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance,” they wrote. “Similarly, we are not persuaded that … his situation is unique and his petition has substantive merit.” A second appeal to Sotomayor’s court resulted in the same decision, and the U.S. Supreme Court declined to hear his case, so Deskovic stayed in prison for six more years before DNA proved him innocent (and convicted another man). Deskovic writes:

Judge Sotomayor will appear before the Senate next week. Given that she has been nominated to a lifetime appointment that affects all of our rights, what she did in my case — condemning me to a life sentence based on procedure in the face of an airtight innocence claim — should be part of the discussion. I want my case to be a part of the national discussion. I want Senators to ask Judge Sotomayor if she stands by her ruling, and whether she would rule that way in the future. If I could I would testify at the Senate confirmation hearing, about the human impact of Judge Sotomayor’s putting procedure over innocence. Thus far, however, I have gotten no response from either side on Capitol Hill.

In fact, as Paul Wright, the editor of Prison Legal News, wrote to me in an email last week, Judge Sotomayor’s ruling against Deskovic would likely be seen as “a strong reason for her to be confirmed to the court since it shows she is outcome-oriented.” Wright continued:

No one cares about innocent people dying in prison, the Republicans and Democrats alike are fine with it….The courts do everything they can to avoid reaching the merits of prisoners’ claims and instead love to dismiss on procedural technicalities. It is the purposeful triumph of form over substance.

Indeed, it is decisions much like this one that are offered up as proof that Sotomayor is a moderate, and not an “activist” judge–which is the current term for jurists who render decisions based upon whether they actually serve the cause of justice. The fact that progressives feel they must celebrate rulings like these in order to prove their nominee is in the “mainstream” is far more a condemnation of Sotomayor’s supporters than of the judge herself.  It all goes to show how far to the right that mainstream now runs–and how willingly liberals have been borne along by the current.

“Identity Politics” at Princeton: Sotomayor (’76), Alito (’72), and Me (’59)

princeton-university_300wide_200highWhat do Sonia Sotomayor and Samuel Alito have in common? Several commentators have pointed out that both graduated from Princeton University (along with ten other Supreme Court justices) before going on to Yale Law and first jobs as prosecutors. But there’s another parallel in their backgrounds, as well: Sotomayor’s and Alito’s time at Princeton in the 1970s shaped and reflected their views on the politics of race, class, and gender. And it’s those views which have turned out to be the most controversial issue in both their nominations.

Sotomayor’s statements about her Latina identity have been used by a cohort on the right to brand the nominee a “reverse racist.” At the center of the storm is a line from a 2001 speech: “I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Newt Gingrich, Rush Limbaugh, and Bill O’Reilly, among others, have declared this proof that she is a bigot who wants to see white men laid low by upstart women and minorities, and this will form the basis of the “judicial activism” she’ll exercise on the court.

As pundits argue about how Sotomayor’s sense of Latina identity might affect her judicial conduct (something never done when the nominees are white men), Politico’s Ben Smith on Friday traced the formation of that identity back to her experiences at Princeton. As a member of the class of 1976, Sotomayor was part of the first group of women admitted to the university, and of a slowly growing number of students of color. Smith writes:

Friends, classmates, and Judge Sotomayor herself say that sense of racial identity as a central political category—and of her own place on the stage as not just a wise judge, but as a wise Latina—were formed in the unlikely crucible of Princeton…

The school was “an alien land for me,” Sotomayor recalled two decades later… Her writing skills, she’d discovered, weren’t as polished as those of her prep school classmates. And few could identify with the daughter of a single mother from one of the poorest counties in America.

The center of Princeton social life, meanwhile, were its exclusive eating clubs, which were largely white. Some even barred women at the time.

 Sotomayor found her own way at Princeton, becoming involved in the campus Puerto Rican group, which helped file a 1974 complaint with the federal government based on the university’s a “lack of commitment” to federally mandated minority recruitment goals. Twenty years after her graduation, she would say in a speech that while “it is not politics or its struggles that creates a Latino or Latina identity…Princeton and my life experiences since have taught me…that having a Latina identity anchors me in this otherwise alien world.” (As Smith notes, another Princeton undergraduate, Michelle Obama, would write something similar in her senior thesis in 1985: “My experiences at Princeton have made me far more aware of my ‘blackness’ than ever before. I sometimes feel like a visitor on campus; as if I really don’t belong.”)

Although it happened less than four years ago, there has been less talk about another Supreme Court controversy that revolved around race and gender politics at Princeton University. In November 2005, a few weeks after George W. Bush nominated Samuel Alito,  documents emerged showing that in a 1985 application for a job in the Reagan Justice Department, Alito had listed under his “personal qualifications” the fact that he was “a member of the Concerned Alumni of Princeton University, a conservative alumni group.” The New York Times reported at the time:

The group had been founded in 1972, the year that Judge Alito graduated, by alumni upset that Princeton had recently begun admitting women. It published a magazine, Prospect, which persistently accused the administration of taking a permissive approach to student life, of promoting birth control and paying for abortions, and of diluting the explicitly Christian character of the school.

As Princeton admitted a growing number of minority students, Concerned Alumni charged repeatedly that the administration was lowering admission standards, undermining the university’s distinctive traditions and admitting too few children of alumni….A pamphlet for parents suggested that “racial tensions” and loose oversight of campus social life were contributing to a spike in campus crime. A brochure for Princeton alumni warned, “The unannounced goal of the administration, now achieved, of a student population of approximately 40 percent women and minorities will largely vitiate the alumni body of the future.”

 Alito said that he did not recall being in CAP, and his supporters tried to characterize it as simply a “conservative” alumni group. But that the Concerned Alumni of Princeton was a racist and sexist organization was not even a debatable point. CAP’s brand of “conservatism” is reflected in a piece in the group’s magazine written by its co-chair, Shelby Cullom Davis, a notorious right-winger and one of Princeton’s largest alumni donors:

May I recall, and with some nostalgia, my father’s 50th reunion, a body of men, relatively homogenous in interests and backgrounds, who had known and liked each other over the years during which they had contributed much in spirit and substance to the greatness of Princeton….I cannot envisage a similar happening in the future with an undergraduate student population of approximately 40% women and minorities, such as the Administration has proposed.

The Princeton Davis reveres is something like the Princeton I remember, but not with nostalgia. As a member of the class of 1959, I, too, was shaped by my four eye-opening years at Princeton. Being what Sonia Sotomayer would call a “white male who hasn’t lived that life,” I was largely an observer, rather than a target, of the insidious bigotry that dominated life at Princeton University. But the experience permanently changed my world view, too.

My family were great admirers of former Princeton president Woodrow Wilson, who had coined the university’s unofficial motto, “Princeton in the Nation’s Service.” I’d heard this all through my early life, so I faced a shock when I arrived for my freshman year. I would like to say that my idealism or iconoclasm made me reject the whole superficial, conformist, class-based system I found at Princeton—but in fact, I never got the chance. It rejected me first. I might have been a white male, but I didn’t have the right pedigree, the right prep school diploma, the right clothes or social graces to make the grade. The only thing that saved me was working on and later editing the student newspaper, especially through its efforts to expose the vaunted eating club system for what it really was: an officially sanctioned instrument of racial and class exclusion. 

At that time, the club system was even more appalling than the fraternities or secret clubs of other Ivy League institutions in that it required every member of the student body to join a club or face exclusion from the university community. Students joined clubs through an annual event called “Bicker,” something resembling a fraternity rush in which students were chosen largely on the basis of looks, dress, social behavior, and class status—the same criteria that would have been used for inviting people to a cocktail party. You can imagine how minorities fared in such a contest. And in the late 1950s, the outsiders in question weren’t women, who wouldn’t be admitted for another ten years, or blacks and Latinos, who could almost be counted on one hand. They were white males—Jewish white males. During my time at Princeton, anti-Semitism was as much an institution as the clubs themselves.

It all came to a head in the 1958 Bicker. Facing criticism about some students not being chosen for a club, student leaders came together and, on the advice of the administration, devised a plan to make sure all members of the sophomore class would be included in one eating club or another. First, they called together everyone who had not yet been admitted to the back porch of Ivy Club, which was dubbed “The Cage.” There, on a cold night, I watched as the unwanted (of whom a disproportionate number were Jewish) were traded back and forth like playing cards, and reported on the scene for the Daily Princetonian.

According to Jerome Karabel’s The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton, publicity surrounding what came to be known as the Dirty Bicker of 1958 affected Princeton’s prestige and application rates, and actually ended up bringing about reform. In my opinion, it will always seem too little and too late. But it was those reforms that would eventually allow the admission of someone like Sonia Sotomayor—or, for that matter, Sam Alito. (There weren’t many Italian Americans from Trenton at Princeton in my time.)

While commenting on the Sotomayor nomination on Friday, Bill O’Reilly (another white male who wouldn’t have made the grade at the best Princeton eating clubs) complained

The left sees white men as a problem. They believe women and minorities in power is a solution to that problem. That is called gender and race politics. With minority voters now able to swing presidential elections, gender and racial situations become extremely important.

And thank god for that.