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.)

[more ...]

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.

< Thursday Night Open Thread | Extreme Conservative Judicial Activism And the Voting Rights Act >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    ease--as far as I can (none / 0) (#1)
    by oculus on Fri Jun 12, 2009 at 06:12:02 AM EST
    tell Nancy Grace is a vigilante.

    If progressives (none / 0) (#2)
    by JamesTX on Fri Jun 12, 2009 at 11:47:37 AM EST
    were only as opportunistic as conservatives, there might be some hope for change. The fear of crime movement has been exploited in every possible arena during conservative rule -- judicial, legislative and executive. They went to work building "tuff on criminals" into all parts of the government early on, so that now we have stacked courts, outrageous statutes and regulations, and a recent exemplar for abuse of executive power against individuals. Undoing the nasty tangled web of the whole framework requires an equal effort in the opposite direction, which I don't see coming.

    For every right conservatives took away, progressives would theoretically have to put it back. There doesn't seem to be much interest in that. Instead, we seem to be being asked to be happy with a sort of promise the power won't be abused while Democrats are in charge, but no sign of taking the power away and restoring a balanced system of justice. So, the message is, authoritarianism and tyranny are electoral options, when in the past they have been proscribed. Mob rule.

    Who cares? (none / 0) (#3)
    by 1980Ford on Fri Jun 12, 2009 at 12:49:58 PM EST
    Seriously, does anyone really care? When conservatives say all politics is local, they mean it is selfish. What will the locals, the individuals, get out of it? I respect your posts, TChris, but think this falls short though your intent is clear. The connection between Nancy Grace, the war on crime, and Bush's disdain of liberty because we should be afraid is not clear. The selfish dots are not connected. Why should anyone care? What's in it for them? Even the far left is willing to throw out the constitution (DU) if the cause is worthy. And why not? Why not hate the Bill of Rights like Nancy Grace does? The People need a reason that is close to them. Indeed, some on the Right are on the front lines ahead of the Left and recognize The Tyranny of Good Intentions. The Left used to fight for due process, now the race is limited to who can implement which tyranny, but few individuals are concerned about the loss of their own liberty and think they need don't worry. It will take something more tragic and dramatic than the Innocence Project to awaken a personal sense of injustice.

    Alot of that bogus (none / 0) (#5)
    by jondee on Fri Jun 12, 2009 at 01:50:04 PM EST
    front line fight against tyranny is, in reality, a disengenuous "fight" to continue to allow the big donors ie: corporations, to continue to retain all the rights and status of indivual citizens while maintaining other privileges unavailable to ordinary citizens (otherwise they'll be tyrannized! against.)

    Of course, the so-called "center-left" of the Clinton, Gore, Obama stripe is also all on board with the scam; if not quite as blatantly and disengenuously as as the Right is.


    According to the review (none / 0) (#6)
    by jondee on Fri Jun 12, 2009 at 01:59:43 PM EST
    typical "victims of tyranny": Exxon, Milken and Charles Keating.

    Thank God we can always count on the Right being out on the front lines looking out for the rights of the average citizen.


    There is some of that (none / 0) (#7)
    by 1980Ford on Fri Jun 12, 2009 at 06:28:27 PM EST
    If you are talking about the book, but there is far more, like the attorney/client privilege and retroactive law. Even if it is about corporate selfishness, that is only because oppressive laws and regulations are at last reaching corporations. There was no incentive for the Right to care about rights before that.

    I look forward to reading part two Chris. (none / 0) (#4)
    by AX10 on Fri Jun 12, 2009 at 01:35:38 PM EST
    I still have questions regarding Sotomayor's record in this area.

    I cannot support a "law and order" extremist for the court (if she is so).

    As for 1980Ford, DU and the rest of the "progressive" movement is but a mere cult of personality based upon Obama.  The movement (with great sorrow) is not about promoting policies, but rather enjoying Obama's feel good rhetoric.