Page 1 of 2

The Progressive Case Against Sotomayor

The nominee has a troubling record on criminal justice and immigration cases. So why are liberals cheering?

| Thu Jul. 16, 2009 9:26 AM EDT

Sonia Sotomayor's all-but-certain confirmation will be a notable victory for Democrats, and for the cause of diversity on the nation's highest court. Whether it will be a victory for criminal justice is another question—one that seems to matter little to most of her liberal supporters.

Long before her Senate confirmation hearings began, progressive politicians, lawyers, scholars, activists, and bloggers had joined together, almost in one voice, to sing Sotomayor’s praises. Beyond predictable paeans to her qualifications and her inspiring personal story, the accolades didn't focus on Sotomayor's passion for justice, her moral rectitude, or even her much-discussed “empathy.” Instead, congressional Democrats and their allies have banded together to celebrate how thoroughly indistinguishable Sonia Sotomayor is from a Republican judge.

In their zeal to show that she is a “moderate,” Sotomayor’s liberal supporters are downplaying all her most compelling qualities, while lauding her most conservative decisions. She has rejected the majority of racial discrimination claims, they crow, and sent most immigrants packing. On criminal justice matters, she is somewhere to the right of the man she will replace, Daddy Bush appointee David Souter. The very facts that ought to make progressives cringe are instead being extolled as Sotomayor's greatest virtues, since they are the things that render her eminently "confirmable."

Advertise on MotherJones.com

The most blatant example of this rhetoric came on the eve of the hearings from New York Senator Charles Schumer, considered one of the Judiciary Committee’s most liberal members. Declaring Sotomayor a “slam dunk,” Schumer bragged

She has agreed with Republican colleagues 95 percent of the time. She has ruled for the government in 83 percent of immigration cases, against the immigration plaintiff. She has ruled for the government in 92 percent of criminal cases. She has denied race claims in 83 percent of the cases and has split evenly on employment cases between employer and employee.

Last month Schumer’s office released its own study of Sotomayor’s 848 decisions in federal asylum cases, which included people seeking refuge from alleged violations of the Convention on Torture. Sotomayor ruled in favor of asylum-seekers just 17 percent of the time. “These findings should put to rest any doubts about Judge Sotomayor’s fidelity to the rule of law,” Schumer said in a statement. “Even in immigration cases, which would most test the so-called ‘empathy factor,’ Judge Sotomayor’s record is well within the judicial mainstream.” In other words, being a Latina doesn't make Sotomayor any more compassionate toward immigrants who face torture and death when we ship them back home.

On questions of criminal justice and criminal procedure, Sotomayor has a particularly substantial record—more than any other current justice, as her supporters have rightly pointed out—thanks to her career as a prosecutor, criminal court judge, and appellate judge. Based on her experience in these roles, Sotomayor’s backers are promoting her as a tough-on-crime pragmatist with no soft spot for criminal defendants—even if they happen to be innocent.

Last month, the Wall Street Journal looked approvingly at Sotomayor’s record on criminal cases, in an article titled “Nominees Criminal Rulings Tilt to the Right of Souter.” The retiring Republican-appointee Souter has sometimes joined Court liberals in defending the rights of the accused and convicted—most recently in a January case concerning police searches and seizures. In a similar appellate case, Sotomayor had ruled in favor of the police. The Journal reported:

New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee—a byproduct, they believe, of her tenure as a prosecutor … Following recent Supreme Court precedent, Judge Sotomayor tends to see relatively few grounds to overturn criminal convictions, says John Siffert, a New York attorney who taught an appellate advocacy class with the judge at New York University School of Law from 1996 to 2006. On the trial bench, he says, "she was not viewed as a pro-defense judge."

Sotomayor had the opportunity to review many petitions for writs of habeas corpus—the basic Constitutional right to seek judicial relief from unlawful detention, which offers recourse to those who believe they have been unfairly or improperly tried or wrongly convicted. Progressives have for years attacked the Bush administration for denying habeas corpus rights to prisoners at Guantanamo and elsewhere. Yet for those incarcerated in U.S. prisons, the main obstacle to accessing these rights is not anything concocted during the Bush years. It is the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), introduced in the wake of the Oklahoma City bombing, passed with overwhelming bipartisan support, and signed into law by then-President Bill Clinton in an election year. The AEDPA severely restricts the ability of federal judges to grant writs of habeas corpus and offer judicial relief to the convicted, even when there is substantial new evidence of their innocence.

Sonia Sotomayor rendered her appellate decisions under the restrictions imposed by AEDPA, and was subject to its tenets. But as a handful of defense lawyers have pointed out, she seemed more than content to abide by those restrictions. One defense lawyer, writing on a personal blog, calls her a “dead bang loser for the defense.” The conservative, law-and-order Criminal Justice Legal Foundation, agreed, and on its blog praised Sotomayor on these very grounds:

[AEDPA] is bitterly resented by many federal judges....Many, many federal judges have attempted to evade it, and a few have gone so far as to declare it unconstitutional. All of the latter have been reversed [by the Supreme Court]….Throughout [Sotomayor’s] opinions, I do not see the hostility to AEDPA that I have seen in so many opinions in the lower federal courts. The statute is largely applied as written and as intended.

Page 1 of 2