Tag Archives: Sonia Sotomayor

The Morally Ambivalent Justice

Ronald Dworkin has a great piece in this week’s New York Review of Books on the Sotomayor confirmation hearings.  In it he criticizes the modern myth that judges are only supposed to apply the law rather than make “controversial judgements of political morality” – a point that I have made in the past.

Here is an excerpt from the article:

Sadly, practically everyone concerned in judicial confirmation hearings—senators and nominees—has an overriding interest in embracing the myth that judges’ own political principles are irrelevant. Sotomayor was, of course, well advised to embrace that myth. Her initial statement, and her constant repetition of it, made her confirmation absolutely certain; she could lose the great prize only by a candor she had no reason to display. She was faced by a group of Republican senators who had no interest in exploring genuine constitutional issues but wanted only to score political points, if possible by embarrassing her but in any case to preen before their constituents. They scoured her record of extrajudicial speeches for any sign that she actually doubts the myth so they could declare her a hypocrite who is not faithful to the law after all.

Democratic senators had no wish to challenge the myth either. They only wanted to protect her from questions that might supply ammunition to her opponents, so they offered her endless opportunities to repeat her empty promise to follow the law. Only President Obama, in a remarkably candid statement, seemed to challenge the myth. The law, he said, decides 95 percent of the cases but that leaves 5 percent to be decided in the judge’s “heart.” Senator Jon Kyl of Arizona asked Sotomayor if she agreed with Obama on this point. No, she roundly declared, I do not.

So the minuet was choreographed, and any illumination ruled out, before the hearings began. Both supporting and opposition senators asked Sotomayor whether she approved of recent Supreme Court decisions they believe of particular concern to their constituents: about abortion, of course, but also gun control, the president’s power to defy Congress, his power to detain suspected terrorists indefinitely, and the permissibility of a city taking private property for private development. They wanted to be seen as knowledgeable and concerned by what worried voters.

You can find the entire article here.

The Emergence of the Roberts/Sotomayor Court and Its Effect on the Rights of the Criminally Accused

Photo Courtesy of TakePart Blog

Photo Courtesy of TakePart Blog

In today’s New York Times, Adam Liptak, the paper’s long-time legal correspondent and now Supreme Court guru, surveys the latest Supreme Court term that just ended this past Monday.  He called Justice Kennedy “the most powerful jurist in America” – an especially scary proposition, since that can only mean more 5-4 decisions for the foreseeable future, with both the “liberal” and “conservative” wings of the Court courting the vote of America’s most powerful and perhaps fickle jurist.

The introduction of Sonia Sotomayor as the Supreme Court’s next Associate Justice will, of course, do little to change that power dynamic.  As Liptak observes:

If Judge Sonia Sotomayor is confirmed by the Senate, she will succeed Justice David H. Souter, a liberal who spent almost two decades on the court. Her record on the federal appeals court in New York suggests that her views are largely in sync with those of Justice Souter, though there is some evidence that she will turn out to be more conservative in criminal cases.

The arrival of a neophyte justice coupled with Chief Justice Roberts’s increasing mastery of the judicial machinery foreshadow a widening gap between the Democratic-led political branches and the Supreme Court. Indeed, the court appears poised to move to the right in the Obama era.

Chief Justice Roberts has certainly been planting seeds in this term’s decisions. If his reasoning takes root in future cases, the law will move in a conservative direction on questions as varied as what kinds of evidence may be used against criminal defendants and the role the government may play in combating race discrimination.

Sotomayor’s presence on the Court will, however, mean dark days for the criminally accused.  As Liptak himself pointed out, when push comes to shove, Sotomayor has generally sided with the Government in criminal matters.  The fact that Sotomayor received the endorsement of eight national law enforcement organizations is reason enough to be worried.  The Alliance for Justice, a public interest organization, reviewed Sotomayor’s record on criminal matters as a judge in federal court in a lengthy report.  It praised her “cautious style” which, according to the organization, “reveals the temperament of a former prosecutor who understands the real-world demands of prosecuting crime and fundamentally respects the rule of law, while remaining alert to the rights of criminal defendants.”    Judge Sotomayor couldn’t have said it better herself.  More troubling is the fact that Sotomayor is supposed to have lived in areas like the South Bronx whose residents and communities have been ill-served by increasingly harsh and conservative policing and anti-crime policies crafted, as is the case here in Atlanta.  Of course, reasonable people may differ on what “criminal justice” means, and Sotomayor’s current views on the matter are by no means an indication that she has forgotten her roots or those regular joes she often claims to have in mind when crafting her judicial decisions.  Yet it is puzzling that for someone who shares Obama’s newly minted judicial philosophy of empathy for the individual, Sotomayor is all too comfortable siding with the institution and those in power.  Then again, there is little indication she has ever strayed from that circle for most of her adult and professional life.

Barring any last-minute revelations, Sotomayor will eventually take the bench on the Supreme Court.  When she does, Justice Roberts will have gained another ally in his quest to strip criminal defendants of their rights.

- AW