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.
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.