Saving Sonia

Having watched as much of the Senate Judiciary Committee’s confirmation hearing of Sonia Sotomayor as any relatively normal human being could, I’m left with a sense of dread.  Not because Senators are political animals, or use more than their share of allotted words.  Not even because Jeff Sessions is broadcast in living color, when it seems that he should come across in black and white.  But because Judge Sotomayor will be charged with safeguarding our civil rights and liberties.

Though it likely isn’t needed, some have tried to offer explanations for what Judge Sotomayor brings to the bench.  Forget the “wise Latina woman” nonsense that will come to be the phrase remembered from these hearings, but, as noted by Anthony S. Barkow, the executive director of the Center on the Administration of Criminal Law at NYU Law School, that she will be the court’s expert on the real world of criminal law.


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.

What is striking about this assertion is that Barkow ignores that her experience is a bit lopsided.  Well, totally one-sided.  It’s not that this isn’t experience, but it’s a stacked deck no matter how hard Barkow tries to spin this.  Whether borne of ignorance or partisanship, there is no recognition that this “much-needed experience” is that of a person who enforced order against the people.



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.

So the spectrum runs from guilty and unremorseful all the way to guilty and drug addicted.  Has she seen the police lie to her about their beating a defendant, or tailor testimony to make fools of judges who have provided a roadmap to subvert the law?  Has she seen the Youtube videos of our police caught engaging their “new professionalism?”  Has she looked into the eyes of a defendant imprisoned for decades for a crime he didn’t do because some zealous young prosecutor decided that the police and/or eyewitness could never be wrong?

That Judge Sotomayor’s career within criminal law kept her in the hallways of 1 Hogan Place, just long enough to make it out of criminal court to handle a few Supreme Court cases doesn’t mean that she didn’t come to realize that it’s a dirty, ugly business.  But if so, her time at Foley Square gave no indication of it.  She was unremarkable as a district court and circuit judge when it came to recognizing reality on the street, fitting in well with those who would never believe an agent to lie or do harm.  The “wise Latina” was one of the boys, her experience notwithstanding.

Barkow’s point is both important and horrible.  Judge Sonia Sotomayor may well become the Supreme Court’s reality check on criminal law cases.  At worst, she would be the ballast to Judge Alito’s perspective in the District of New Jersey.  Will she provide balance to Judge Alito, or will the ship list hard to starboard?

In the effort to soften the image that Jeff Sessions wishes to craft of Judge Sotomayor as some weird liberal activist, a characterization that’s as absurd as it is baseless, her supporters proffer the view that the forces of order need not fear her as, our Vice President proclaimed, she’s “got your back.”  Biden was just being honest.

Judge Sonia Sotomayor is the appointee of a Democratic President, a liberal if one believes the epithets,  It only gets worse from here.  I have no doubt that a well-qualified candidate with even harsher views toward criminal defendants could be found wandering the wilds of Alaska, but I hesitate to accept that our options are bad and worse.  Could Obama find no qualified candidate who embraces the Constitution? 

While she could have an epiphany on her walk up the stairs in front of the Supreme Court, that the future of personal freedom in the United States rests on her vote, neither friend nor foe has given any reason to believe that Sonia Sotomayor would be inclined to stand tough as rights and protections are whittled away.  Indeed, they don’t even recognize this as a worthy part of a judge’s experience.

The word “empathy” has been used with great frequency over the past few days.  No one has asked, empathy for whom?  I see no reason why the forces of order should fear her empathy.  There is grave reason, however, for the rest of us to be deeply concerned.

H/T Berman

21 comments on “Saving Sonia

  1. scott in phx az

    You’ll find that modern day “liberals” are just as much in favor of “law and order” as any Hitlerite or Mussolini type fascist.

    Sotomayer is lazy and stupid, but she’ll come down on the side of the state and “law and order” more often than not (a LOT more often).

    This is an awfull legacy of the Obama administration.

    My wife is Hispanic, and she is embarrassed to think that this stupid woman is the representative of her ethinic background for the next 30 years.

  2. SHG

    Actually, what I find is that people who make anonymous, pointless, knee-jerk comparisons of those with whom they disagree politically to fascists are lazy and stupid, having nothing substantive to offer to the conversation. 

  3. Dan

    I think we may be in the middle of a trend (started by Bill Clinton and taken to a new level after 9/11 perhaps?) where otherwise liberal politicians, judges and other public figures demonstrate how “mainstream” and “moderate” they are by how harshly they’ve treated criminal defendants.

  4. parse

    Has she looked into the eyes of a defendant imprisoned for decades for a crime he didn’t do because some zealous young prosecutor decided that the police and/or eyewitness could never be wrong?

    yeah, she has. The defendant’s name was Jeffrey Deskovic, and Sotomayor looked into his eyes and sent him back to prison for another 6 years, until DNA evidence finally exonerated him.

  5. SHG

    I think we’ve been there for quite a long time, since Michael Dukakis get his butt whupped by GHW Bush with the Willie Horton ad.  The question is whether, given President Obama’s support, the Demoracts will stop trying to prove themselves to be Republican lites, holding firm to the defensive posture when it comes to civil liberties and constitutional rights, and decide that it’s acceptable to actually stand up in favor of them. 

    This choice, in my opinion, bodes poorly.

  6. SHG

    You are absolutely right.  And now the next question:  Did she learn anything from Deskovic’s exoneration, or was he just an unfortunate casualty of war?

  7. Steve in AK

    After the Willie Horton ad, the Dems have pretty much ceded any sort of discussion about rights of those accused of crimes. The debate now seems to be which side wants to lock people up for longer. The ironic thing about it is that the Willie Horton ad was actually created by Al Gore to challenge Dukakis in the primaries. A good friend of mine, a life-long die-hard Democrat, recently reminded me of that recently.

  8. SHG

    From what I see in Wikipedia on the Willie Horton ad, Gore raised the issue of furloughs and Horton in a debate during the primary, but Lee Atwater elevated it to a television commercial during the general campaign.  So while Gore didn’t create “the” or “a” Willie (his name was actually William) Horton ad, he did have a finger in it, though it likely had no impact on Atwater’s decision to create the ad and strike fear in the hearts of every American suburban woman.

  9. scott in phx az

    Have it your way SHG but I think ‘scott in phx az’ is hardly “anonymous”.

    funny thing – I didn’t think I was disagreeing with you or anybody here.

    I do disagree with modern day “liberals” who push un-qualified (and statist oriented “justices” like Sotomayer) people for the SC, just like I did with Bush’s nomination of H Meyers.

    on that note – I’m sure you condemned those who for the last 8 years called Bush “Hitler” as “lazy and stupid, having nothing substantive to offer to the conversation”, right? RIGHT?

    You might want to read “Liberal Fascism” for an interesting history of the progressive/liberal movement and its ideological roots in fascism.

    back to Sotomayer, as a gun-owner I KNOW that she has no “empathy” for me so I’m not happy with her. I also think she is bad news for civil liberties in general. Since I came here from Radley Balko’s Libertarian blog I’d like to think I’m as concerned about individual freedoms as the rest of you elites, but that can’t be possible since I voted for McCain/Palin right? boy, how my fears have ALREADY been born out, huh!

    so when your fears come to pass, remember that it was Obama, the Democrats, and the modern day “liberals” who put Sotomayer on the bench.

    But since I don’t have anything to “add to the conversation” I won’t be reading about that here.

  10. SHG

    Shocking though it may be to you, “scott in phx az” means nothing around here.  So yeah, you are anonymous and what you “feel” is of no consequence.  If you did have a clue, however, you would know that there’s no tolerance of calling anyone “Hitler”, regardless of their politics.  It’s not about disagreement, but about having nothing worthwhile to say.  So yes, scott in phx az, you have nothing to add to the conversation.  Bye.

    And a note to anyone stopping by from the Agitator: Nice to have you, but this is a legal blawg, not a political blog.  I don’t care what side of the aisle you’re on, but don’t use my comments to trash your political adversaries.  Most importantly, try your best not to violate my primary rule :

  11. Dan

    I agree that it bodes poorly, but on an only slightly related note, I noticed a piece in newsday today about the re-trial of a purported gang member who’s initial conviction was tossed by a panel that included Sotomayor because the testimony of the police-expert on gangs included too much hearsay and violated Crawford.

  12. SHG

    I suspect/believe that she will be a good follower of the law.  But Supreme are leaders, not merely followers, or we’d still be arguing Gideon.

  13. Steve in AK

    Interesting. The effect winds up the same, though. Neither side of the political fence has so far seemed to have the guts to point out our insanity after it was made an issue in the ’88 election.

    As disappointed as I am with the Sotomayor choice for Supreme Court (I think Kathleen Sullivan would have been a far better choice for a number of reasons), I am glad to see this administration’s position regarding the crack/powder disparity in the sentencing guidelines. I hope this leads to at a minimum an evaluation of the mandatory minimum punishments for a number of offenses.

    I am also heartened to see Senator Webb calling for an overhaul in our justice system seeing how it imprisons so many people in this country.

    I am not trying to be political in terms of D v. R, or even right v. left, but seeing some of these issues finally being discussed or acted upon is a tremendous change after so many years of watching client after client get just enormous sentences in federal court.

  14. SHG

    That the conversation is happening is good, provided that it’s an intelligent one and doesn’t devolve into the same games we’ve enjoyed for the past two decades.  There is much wrong, and it will require some guts to confront it in a meaningful way.  I have little faith that our officials are ready and willing to do so.

  15. Pat

    I’m not sure if this is political or legal. It comes from my first posting on Judge Sotomayor on my own blog.

    America’s criminal justice system is thought by many to be in pretty dire straights, the record prison population the most obvious symptom. further supporting the concerns about the efficacy of the system is S-714 by Virginia Sen. Jim Webb to establish a national criminal justice commission to look at the failures of the current system.

    New York Senator Chuck Schumer, in introducing Sotomayor to the Judiciary Committee, bragged that: “…as a judge, Sotomayor ruled for the government in 83% of immigration cases, in 92% of criminal cases.”

    How can any objective jurist find only for one side 92% of the time in a system that is in the dysfunctional condition that America’s criminal justice system is in today.

  16. SHG

    That Chuck Schumer offered that intro was appalling.  He meant to calm the Republican storm, as if there was any chance of that happening, and in the process demonstrated that in the criminal justice arena, there are no champions in Washington.

  17. Pat

    Sad but true. No champions for justice and the constitution. Not for a long time.

    Personally I think there have not been many champions of justice in Washington since Nixon and the Dixie-crats colluded to create the modern drug war as a means to re-invigorate Jim Crow to undermine the electoral empowerment of the Voting Rights Act.

    Trumped up morals laws were, after all, the other leg of Jim Crow beside direct denial of access to polling and elections.

  18. Sojourner

    As a resident of greater Houston, and its infamously corrupt Galveston County, I see Jim Crow at work in the war on drugs every day. Cops with an obvious white supremacist bent beat suspects with impunity. They get away with it by implying they suspects might have taken drugs. The most horrible racist incidents, such as the beating of a 12 year black child ‘mistaken for a prositute’ by four adult cops while standing in her yard, is allowed, while the traumatized child is put through two trials for defending herself against these nonuniformed cops (who tried to pull her into an unmarked van). (This happened in Galveston Texas – the girl’s name is Dymond Milburn.) The DA and the cops tossed around the idea that the girl was working as a child prostitute and/or delivering drugs, and thus her beating was OK. Of course, there was no evidence of this, and the cops never called CPS to help this supposed child prostitute they’d arrested, but no matter. I really think the DOJ needs to barrel down on pockets of the south where these sorts of things are routine.

  19. Rick Horowitz

    Hopefully, I’m not anonymous. ;)

    While I began to ignore what Anonymous Scott had to say after the “Hitlerite-Mussolini-type” comment, I think it is also a mistake to think that there will be times when making such comparisons is instructive. It’s just that it should be done as a piece of a sound logical argument, not an argument ad hominem.

    There is an old saying that shows up in various forms which states that “those who do not learn from history are doomed to repeat it.” On the other hand, I’ve heard — and I think it fits better — that “history doesn’t repeat itself; at best, it sometimes rhymes.”

    It is this tendency that concerns me. And, frankly, I think it actually reinforces the first quote. Hitler and Mussolini, as I myself have written numerous times now, did not arise in a vacuum. They pulled off their horrendous reigns because they happened to climb on their surfboards when the wind was blowing the waves just right.

    At the risk of straining an analogy, a proper argument aimed at showing how the wind is blowing and pointing out what’s happening with the surf may have more impact when it references what those circumstances have brought about in the past.

    That it does so is no reason, by itself, to discredit the one who proffers it.

    [Ed. Note:  FYI, that old saying is by George Santayana, Reason in Common Sense, Vol 1, 1905-06:  Those who cannot remember the past are condemned to repeat it. ]

  20. SHG

    To the extent that there’s any purpose in making fascist comparisons, it can be done without invoking the Hitler/Mussolini stuff.  I won’t tolerate it.  It’s not that it’s just an ad hominem attack, but that its the ultimate devolution from substance, no matter how much one thinks that someone is comparable to Hitler.  No one is comparable, and no point that relies on the name Hitler is worthwhile, no matter who makes it or what their intentions.

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