Judge Sotomayor Is Either Tough Or Soft On Crime (Part 1)
Republicans have a long and successful history of demonizing Democrats as "soft on crime" -- or at least they did until Bill Clinton taught Democrats to be even tougher on crime than Republicans. Instilling fear of criminals and of the "liberal" politicians and judges who supposedly coddle them was such a successful strategy that conservatives adapted it after 9/11 to promote fear of terrorists while claiming that Democrats lacked the resolve to battle them. With the meek acquiescence (and often the eager support) of Democrats who feared Election Day more than crime or terror, conservative efforts to protect the nation by enacting "tough" legislation and appointing "tough" judges have been tough on the Constitution.
For the moment, the public's fear of criminal violence has been supplanted by fears of job loss and Republican misgovernance. Lacking fresh ideas to add to their thin playbook, conservatives with time on their hands are nonetheless giving the politics of fear another try by attacking Judge Sotomayor as a soft-hearted liberal who will "favor criminals and hinder law enforcement." Instead of responding that the conservative judges appointed by Republicans have too often favored unchecked police and executive power while hindering civil rights, the predictable but disheartening White House response is a public relations campaign (complete with law enforcement endorsements) to convince the public that Sotomayor's record as a crime-fighting prosecutor, a tough sentencing judge, and a police-friendly appellate judge proves that she is no softy liberal. How long will it be before the White House begins to talk up the similar career paths that Judge Sotomayor and Justice Alito have followed? (Shudder.)
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The evidence cited to date for the respective claims of softness and toughness is thin. Early in her legal career, Sotomayor spent five years as a prosecutor -- a career path often followed by lawyers who hope to pursue a political or judicial position. Eager to take full advantage of her crime-fighting credentials, the White House quotes her former boss, Robert Morgenthau, who fondly remembers her as a "fearless and effective" prosecutor and finds accusations that she is soft on crime "amusing." (What it is that prosecutors have to fear other than the fear that all trial lawyers share -- losing -- isn't revealed in the quotation, but as happy-talk goes, "fearless" has a nice ring to it.)
The White House wants to give Sotomayor toughness points for prosecuting the "Tarzan Murderer," who was "sentenced to a prison term of 67.5 years to life and his conviction was affirmed on appeal." The sentence doesn't seem particularly tough for a defendant who committed four murders and seven attempted murders, but what does the sentence tell us about Sotomayor anyway? Tarzan was sentenced by the presiding judge, not by Sotomayor. In fact, Sotomayor's description of the case (starting at page 162 of her Judiciary Committee questionnaire)(pdf) makes clear that she was co-counsel -- clearly not lead counsel -- for the prosecution. The reassurance in both the White House press release and Sotomayor's questionnaire that the conviction was affirmed on appeal tells us only that Sotomayor and her fellow prosecutors didn't screw anything up so terribly as to cause a reversal. Sotomayor's role in prosecuting Tarzan is weak proof of toughness.
In the end, Sotomayor's prosecutorial effectiveness, and even her fearlessness, are irrelevant. The elected district attorney made policy and set priorities; Sotomayor took orders. It's good that she did her job well (nobody wants to see a bad lawyer on the Supreme Court), but Supreme Court Justices are not trial lawyers. Having hands-on courtroom experience gives her a real world perspective that might be lacking in someone who has only academic or corporate experience, but Sotomayor's performance as a prosecutor ultimately reveals little about the positions she will take on the criminal justice issues that come before the Court.
More revealing than her job performance is the attitude that she brought to the job: Did she adopt the self-righteous, avenging angel of justice persona that someone like Nancy Grace displays, or was she a reasonable human being? It's encouraging to read that a legal aid lawyer who often gave Sotomayor "a plate of pasta or pot roast and a glass of scotch" after work offers this assessment:
"A lot of district attorneys thought they were doing God's work. But she saw it as a civic responsibility," [Dawn] Cardi said. "She was also concerned that if there wasn't enough evidence, someone shouldn't be prosecuted."
Unlike single-minded prosecutors who, like Nancy Grace, equate justice with convictions, it doesn't appear that Sotomayor engaged in the dodgy practices (withholding exculpatory evidence, for example) that characterize a win-at-all-costs mindset. If she played by the rules and didn't pound the podium while demanding the maximum sentence in every case, we can at least feel reassured that she's not likely to join the Court as a rabid, law-and-order lunatic.
Part 2 will appear later today.
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