Pennsylvania Prosecutor Goes Too Far

Someone needs to tell former DA and former (unsuccessful) candidate for Pennsylvania Attorney General Bruce Castor, Jr., that the Senate does not, and should not, ask judicial nominees how they will vote in specific cases coming before the court for which they are nominated.

We are, of course, talking about Judge Sonya Sotomayor, the President's nominee for the seat on the United States Supreme Court vacated by retiring justice David Souter.

In a guest editorial written for the Philadelphia Inquirer, Mr. Castor says that "the United States Supreme Court will be reviewing a case of one of the commonwealth's worst." He is referring to Joseph Kindler, who was denied an appeal by the Pennsylvania Supreme Court because he had escaped after his conviction and during the time the conviction and sentence should have been appealed.

The Supreme Court long ago made clear that the right to appeal is an important guarantee that the death penalty is not arbitrarily imposed. So it's no surprise that they've granted review of Kindler's case. Even if Kindler wins, all he gets is a new appeal. He doesn't get set free. He doesn't even automatically get a new trial.

But Mr. Castor is concerned about the memo Judge Sotomayor co-authored (before her 17 years as a judge) as a member of the litigation committee of New York's Puerto Rican Legal Defense and Education Fund (you can read about the memo here, and the memo itself is here).

The Pennsylvania Prosecutor (and doubtless, a potential GOP candidate for some statewide job in the future) says that Judge Sotomayor should be asked specifically how she will rule in the Kindler case:

"What is not clear is how Judge Sotomayor will side on the Kindler case this fall should she be confirmed.


Would Judge Sotomayor side with the Pennsylvania jury, Pennsylvania law enforcement and courts that took a stand against a violent criminal and clear escape risk? Or, will she side against Pennsylvanians and allow a federal court to take a murderous criminal off death row where Pennsylvanians decided he belonged?"

How soon they forget. Does anyone remember when Samuel Alito was nominated? He had written a memo in 1985 for the Reagan Justice Department that said Roe v. Wade was wrongly decided. I guess maybe Republicans conceded that this disqualified him?

Ooops, no. The archives (January 2006) of the Christian Science Monitor report:

For the past two months journalists and legal analysts have been poring over hundreds of Alito decisions issued during his 15 years as a judge on the Philadelphia-based Third US Circuit Court of Appeals. They have also examined memos and letters he wrote while working as a Justice Department lawyer during the Reagan administration. "I am particularly proud of my contribution in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion," Alito wrote in one letter.

In a 1985 memo, Alito made clear his legal judgment that the landmark abortion case, Roe v. Wade, should at some point be overturned. But he said in the memo that the 1985 case then before the high court was not the right time to push for it. Instead, he counseled his Reagan administration colleagues to urge the court to cut back on abortion protections.

Some Alito supporters have downplayed the papers, saying they were produced 20 years ago when Alito was a young lawyer, and not yet a judge. They urge senators to focus instead on Alito's work as an appeals court judge.

A later Christian Science Monitor story highlights how and why then-Judge Alito did not give more specifics about cases that might present potential constitutional issues:

"He is saying as little as he needs to be confirmed and hasn't made many mistakes that trouble a majority of senators whose votes he needs," says Carl Tobias, a professor at the University of Richmond Law School.

But unlike Chief Justice John Roberts, Mr. Alito did not default to refusing to answer a question because "the issue is likely to come before the Court," he adds. "He has tried to wade in and engage the questions. The answers aren't always as specific as the senators would like, but he can't go too far, either. He'd have to recuse himself."

Maybe Mr. Castor should bone up on constitutional law before he runs his mouth (or for office) in the future. But he probably won't take my advice. Oh well.

P.S.: The Pennsylvania ruling should be reversed by the Supreme Court.

News Flash: She's a Judge, Not a Philosopher

We are at the "Tower of Babble" stage of the Supreme Court nomination/confirmation process; that place where the pundits and talking-heads are slicing and dicing Judge Sonya Sotomayor's opinions and speeches for some indication of her "judicial philosophy."

The latest such pieces I've read are in the Wall Street Journal's law blog, which sent me to Jeffrey Rosen's analysis for TIME.

Rosen says:

An examination of Sotomayor’s career supports the idea that on the bench, she has been a racial moderate, not a radical. At the same time, her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed.

Given than Rosen had previously quoted unnamed sources as saying that Judge Sotomayor was “not that smart and kind of a bully on the bench,” this revised opinion is well, "more nuanced and complex" than Rosen's earlier piece.

But wait, there's more. In the TIME article, Rosen writes:

[Judge Sotomayor] appears to be an incrementalist rather than a radical of any stripe. In a survey of Sotomayor’s 226 majority opinions, Stefanie Lindquist, a law professor at the University of Texas at Austin, found that only 38% could clearly be characterized as liberal, while 49% could clearly be considered conservative. When the criminal cases (in which appellate judges are encouraged by Supreme Court precedent to be relatively pro-prosecution) are taken out of the mix, Sotomayor’s record looks about 46% liberal and 36% conservative.

* * * *

But it’s in dissents rather than in majority opinions that appellate judges often reveal their true feelings. Of Sotomayor’s 19 published dissents, only three dealt clearly with racial issues, and they pointed in different directions. Sotomayor does not appear to be an outlier in race cases, although she seems to have no overarching theory about how to decide them.

I've got news for Rosen and the WSJ: Sonya Sotomayor is, well, a judge. Judges decide the cases they have before them, in a sincere (we hope) effort to apply existing legal principles to new fact situations and thereby to resolve disputes. So why, even in dissent, would it matter that Judge Sotomayor's opinions on racial issues "pointed in different directions" and that "she seems to have no overarching theory about how to decide them?"

We liberals can hope that Judge Sotomayor's sympathies lie with the left-out in this country (what the prophets called "the poor and the oppressed"). But we should not expect that she has any "overarching theories" that account for her past opinions.

And lest anyone thinks this is an anachronistic or reactionary position on my part, I would remind you that Justice Brandeis coined the phrase "judicial restraint" and the epithet "judicial activism." Judges do "make law," of course. In our Anglo-American judicial tradition, we recognize that existing legal principles do not solve every case, and therefore have to be changed and molded to meet new issues. We also know that the Framers wrote the Constitution (and the first Congress the Bill of Rights) in self-consciously abstract language (e.g., the prohibition against "cruel and unusual punishment"), so that the original Federalists (John Adams and John Marshall) could use the power of judicial review to apply the language of the document in new and even unforeseen ways.

But for judges to function in a democratic system of government, they must, at the end of the day, allow the people to be sovereign. That means having respect for legislative and executive pronouncements, and also for precedent set by other judges. "Judicial restraint" in the common-law system means that judges "triangulate" the views of the elected branch of government, the precedent of earlier judicial decisions, and the abstract values of the Constitution. It is a fabulous, practical exercise in process philosophy and philosophical idealism (cf Whitehead, Hartshorne, Hegel, Royce) -- but it does not involve the mechanical application of a "judicial philosophy" to make edicts by judicial fiat.

So three cheers for Judge Sotomayor's "incrementalist, nuanced" approach to cases. And three raspberries for the legal pundits. Get a life, guys.

NYT Certifies: She's The Real Thing

Today's New York Times has an interesting article on Circuit Judge Sonya Sotomayor, President Obama's nominee to the Supreme Court. It answers a lot of questions I have heard from my friends on the Left since her nomination. Given that the President has a penchant for Establishment appointees like Treasury Secretary Geithner, and given that Judge Sotomayor was a prosecutor before she was appointed as Federal District Judge by President George HW (Daddy) Bush, these friends ask: is the President making the most of his opportunity to re-shape the debate in the Supreme Court?

The answer, happily, is a resounding "yes." According to the Times, in the 1980's Judge Sotomayor was on the board of directors of the Puerto Rican Legal Defense and Education Fund (PRLDEF), a civil rights advocacy group in New York. The Times reports:

Ms. Sotomayor joined its board in 1980 when she was a young prosecutor in Manhattan and fresh out of Yale Law School. It was full of young, idealistic Latino lawyers like her who were eager to make a mark.

“She just believed in the mission,” Luis Alvarez, a former chairman of its board, said of Ms. Sotomayor. “This was a highly refined group of individuals who came from the premier academic institutions. It was almost like Camelot. It was a wonderful growth period.”

But Ms. Sotomayor stood out, frequently meeting with the legal staff to review the status of cases, several former members said. And so across her 12 years on the board — she left when she was appointed a federal judge in 1992 — she played an active role as the defense fund staked out aggressive stances on issues like police brutality, the death penalty and voting rights.

Among Judge Sotomayor's interests in those advocacy days was capital punishment. As the Times explains:

Ms. Sotomayor was part of a three-person committee of the board that recommended in 1981 that the fund oppose the reinstitution of the death penalty in New York State, according to board minutes from that time.

“Capital punishment is associated with evident racism in our society,” the panel wrote. “It creates inhuman psychological burdens for the offender and his/her family.”

I'm sure this aggravates the hell out of the Right, and it probably scares some on the Left who would prefer a "stealth" nominee -- one who has a hidden philosophy that is only disclosed after confirmation (you can put current Chief Justice Roberts in the category). But this President doesn't shirk the fight. The old politics of trying to "put a fast one" by the electorate by appointing people with no public record is OVER.

Let the debate begin.

PS: For the record, I like Secretary Geithner too.

Decide for Yourself: the Record of President Obama's Nominee

As you have no doubt heard from other sources, President Obama plans to nominate Judge Sonya Sotomayor of the United States Court of Appeals for the Second Circuit to the United States Supreme Court. SCOTUSblog has been posting an excellent series regarding the published opinions of Judge Sotomayor. They are the first and best source for assessing her candidacy:

Civil Opinions Part I

Civil Opinions Part II

Civil Opinions Part III

Civil Opinions Part IV

Judge Sotomayor's Opinions With Dissents