Criminal Justice

Sotomayor on Crime

by Matt Kelley

category: Supreme Court

Published May 28, 2009 @ 07:02PM PT

The battle lines are being drawn on President Obama's historic appointment of Sonia Sotomayor to the U.S. Supreme Court. And while there is disagreement about some of her opinions, nobody can honestly say she's a radical pick. Her record on the bench is moderate on issues across the board. If confirmed, she will join eight other justices who previously served on a federal circuit court. A graduate of Yale Law School, she will keep alive the unhealthy statistic that eight of the nine justices went to either Harvard or Yale.

Even on criminal justice issues - she's right in the norm for judges who have risen to the top of the ranks. She was known as a tough prosecutor and most of the time on the federal bench she has decided against the defendant and for the state.

There are rays of hope for defendant rights in her record, however.  Corey Rayburn Yung posted some informative statistics at the blog Sex Crimes this week. While the average federal judge ruled for the defendant in 6.28% of the time in 2008, Sotomayor ruled for the defendant in 7.41% of cases. A small difference, but it's something. Yung also ranks federal appeals judges on an activism scale and found her less activist in general than the average judge but slightly more activist on criminal cases.

After the jump, I'll look specifically at two opinions she wrote on the Second Circuit. One of them is a little troubling, while the other is an inspiration.

First, the troubling: in the case of U.S. v. Anthony Santa, the court ruled that crack cocaine found in Santa's possession was valid evidence despite the fact that the warrant against Santa had expired 17 months earlier. In a bookkeeping error, the warrant was never removed from the database and the police were acting in good faith. A true activist judge might have tossed that out, but not one aiming for a possible SCOTUS nomination. She was just following precedent.

She did go out on a limb, however, for felon voting rights. When her colleagues on the bench ruled to maintain the disenfranchisement of felons, she dissented strongly. Doug Berman wrote at Sentencing Law & Policy today that her vigor in scalding her fellow judges in this case could have been passed for the words of her future colleague Antonin Scalia. And Roger Clegg, a white man who works hard to defend what's his, called it "another troubling opinion." She wrote:

The duty of a judge is to follow the law, not to question its plain terms.  I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created.  The majority's "wealth of persuasive evidence" that Congress intended felony disenfranchisement laws to be immune from scrutiny under § 2 of the Act,  Maj. Op. at 322, includes not a single legislator actually saying so.  But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.

The full decision is here.

I've written many times here about the importance of felon voting rights, and I commend Sonia Sotomayor for taking a strong position on this crucial issue. She defended the law as it was written against judges who were reading too much into it. I hope it's a sign of what we can expect from her.