Judge Sotomayor Is Either Tough Or Soft On Crime (Part 2)

The White House wants you to believe that Judge Sotomayor is tough on crime. Conservatives want you to believe that she is soft on crime. Neither side cares to ask whether she will be a diligent guardian of the constitutional rights of the accused.

Our review of the evidence cited by propagandists to support their respective "she's tough" and "she's soft" positions began (in part 1) with a look at Judge Sotomayor's early career as a prosecutor. Given what we hope is the immense difference between the job duties of a prosecutor and a Supreme Court Justice, that period of her life told us relatively little about the approach she will take to the criminal justice issues that will come before the Court. Let's venture to the next stage of Judge Sotomayor's career to see if the evidence brings her criminal justice philosophy into sharper focus.

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Sonia Sotomayor was a federal district court judge from 1992 to 1998. Federal judges during those years were required to follow the federal sentencing guidelines, which constrained their ability to be tough or lenient (or fair) when they imposed sentences. For the most part they checked boxes and added up points and looked on a grid to find the resulting sentence. A federal judge's power to impose a lesser sentence than the guidelines commanded was severely limited (unless the government asked the court to reward a defendant for snitching). While appellate courts tended to be more tolerant of sentences that exceeded the guidelines, a judge's power to "upward depart" from a guideline sentence was still restricted.

While there may have been other unusually "tough" sentences that Judge Sotomayor imposed during her six years on the bench, the White House's press release touts only two (one for cocaine distribution and one for mail fraud) that exceeded the guidelines. Of course, a federal judge who wanted to impose tough sentences in those years didn't need to exceed the guidelines; for most crimes (particularly drug crimes), the guidelines were tough enough to satisfy the most draconian urges.

Even if mandated fidelity to the sentencing guidelines had not doomed the White House's heroic attempt to find examples of Judge Sotomayor's sentencing toughness, a harsh sentence tells us only how a judge feels about a particular offender or a particular crime. Supreme Court Justices do not impose sentences. They are not in business of punishing individuals, as are district court judges. They accept cases to settle or clarify the law (particularly when the courts of appeals are divided) and occasionally to reconsider a precedent that has fallen out of step with the law's development. Whether a particular offender deserves a tough sentence is rarely a question that a Supreme Court Justice will be called upon to answer. If being "tough on crime" means putting the bad guys away for a long time, it's meaningless to apply the phrase to a Supreme Court Justice.

That the Judicial Confirmation Network had nothing to say about Judge Sotomayor's work as a prosecutor or district judge suggests that she was not notably "soft on crime" in either position. The Network instead renews its complaint that in 1981, Sotomayor joined two other members of the Board of the Puerto Rican Legal Defense & Education Fund in signing a memo that made "one-sided and irresponsible assertions about the death penalty." The one-sidedness of the brief memo (pdf) reflects its purpose: to recommend to the full Board that the Fund "take a public position in opposition to the restoration of the Death Penalty in New York." The Network seems to be most troubled by the "irresponsible" assertion that capital punishment is associated with racism, although many conservatives will cringe at its reference to "the state of humanistic thinking in the world." The White House counters with a district court case in which Judge Sotomayor "allowed the first death penalty case in Manhattan in 40 years to go forward."

Neither Judge Sotomayor's opposition to the death penalty as a policy matter in 1981 nor her interpretation of controlling precedent a few years later offer meaningful insight into her view of the various constitutional issues surrounding the death penalty that may come before the Court during her service as a Justice. District court judges must follow precedent. Supreme Court Justices have the power to reinterpret or reject precedent. On the other hand, a Justice's legal opinion about death penalty issues may not align with the Justice's personal belief that death is an unwise or immoral punishment.

The Nine have vast, unreviewable power to change the law or to force its stagnation, and thereby to reshape a nation and to thwart its goal (as famously expressed by John Adams in 1780) of achieving "a government of laws and not of men." District court judges can tinker with the law a bit, but their decisions usually have an impact only on the parties before them and are almost always subject to review by a higher court. District court judges for the most part are facilitators: they rule on objections during trials, decide whether jurors with sick children should be excused from service, lecture civil lawyers about their dilatory tactics, issue decisions on an endless stream of motions, and give an occasional speech to a civic group or law school audience. In short, their job is to keep cases moving through the system. Trying to discern from this cluster of duties how they would wield the incomparably greater power of a Supreme Court Justice in a particular area of law is often fruitless, as it seems to be in the case of Judge Sotomayor.

Perhaps we will have more luck when we examine Judge Sotomayor's work on the appellate bench in Part 3. Look for it to come around on the gee-tar this evening or tomorrow morning.

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    Yeah, it's ridiculously expensive, but ... (none / 0) (#2)
    by TChris on Fri Jun 12, 2009 at 04:59:46 PM EST
    but it's Wrigley.  Standing and expanding since 1914, ivy covered outfield walls, more than 5,600 consecutive day games before economics overcame tradition and lights were installed ("lights had actually been placed in the ballpark for installation in 1941, but Wrigley instead donated them to a shipyard for the war effort the day after Pearl Harbor"), Babe Ruth's "called" home run and dozens of other memorable baseball moments, home to perhaps the longest-suffering fans in the history of spectator sports (which may account for the impressive collection of drinking establishments in Wrigleyville).  It's worth a few extra bucks just to hang out in a ballpark that isn't dedicated to corporate skyboxes and TGI Fridays. If only the dreadful Cubbies didn't play there, I'd probably go to a couple of games every year just to soak up the beer-stained ambiance.

    Long layover @ O'Hare (none / 0) (#3)
    by oculus on Fri Jun 12, 2009 at 06:35:32 PM EST
    So we took a bus to Wrigley Field to catxh Padres/Cubs game. Little did we know games are always sold out. But we got standing room and saw Tony.Gwynn got onw of his hits en route to Hall of Fame.