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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

A more surprising affirmation of Sotomayor’s record in this area came from the Alliance for Justice, sponsors of the Defend Habeas project. In a letter to Senate Judiciary Committee chair Patrick Leahy and ranking member Jeff Sessions, the AFJ wrote:

Judge Sotomayor’s criminal justice opinions reveal the temperament of a former prosecutor who understands the real-world demands of prosecuting crime and fundamentally respects the rule of law. When reviewing the constitutional rights of criminal defendants, Judge Sotomayor closely follows Second Circuit precedent and dispenses narrow rulings tailored to the particular facts of the case. Exhibiting a moderate and restrained approach to judicial review of trial process, she focuses on procedural issues, and she has resolved the overwhelming majority of her cases without reaching the merits of a defendant’s claim. Significantly, she frequently concludes that trial defects resulted in harmless rather than structural error. Her restrained anner is most evident in her habeas corpus decisions, in which she strictly adheres to the procedural requirements of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), often dismissing habeas petitions as nexhausted or time-barred under AEDPA, even when faced with potentially credible—and, in one instance, ultimately proven—claims of actual innocence. While the Alliance for Justice believes that, where possible, judges should reach the merits of a defendant’s constitutional claims and recognize the damage that a trial court error inflicts on the integrity of a criminal proceeding, we nonetheless respect Judge Sotomayor’s moderate approach and commitment to preserving the delicate balance between the government’s ability to prosecute crime and an individual’s constitutional rights.

The AFJ’s report, and its upbeat press conference on Sotomayor’s criminal rulings, were widely reported under headlines like “Liberal Group Praises Sotomayor’s Criminal Justice Record,” and “Sotomayor ‘Tough’ on Crime, Report Says.” It begs the question of whether habeas corpus rights warrant a fervent defense only when they are violated by Republicans, and not when they are dismissed by Democratic court nominees under laws signed by Democratic presidents. 
The most powerful statement on this issue has come from Jeffrey Deskovic, who was wrongfully convicted of rape and murder at age 17, and spent 16 years in prison before being exonerated by DNA evidence. His earlier appeals had, in 1997, reached New York State’s highest appeals court, where his petition for a writ of habeas corpus was denied because his lawyer had filed it four days late (on the erroneous advice of a court clerk). The time restriction had been imposed by the then-new AEDPA.
Deskovic then appealed his case to the Federal Second Circuit, where he encountered Judge Sonia Sotomayor. In a piece on Alternet last week he wrote that his lawyer "gave three reasons why Judge Sotomayor and her colleague should overturn the procedural ruling: 1) Upholding such a ruling would cause a miscarriage of justice to continue; 2) Reversing the procedural ruling could open the door to more sophisticated DNA Testing; 3) The late petition was not my fault or my attorney's." But the judges refused to reverse the ruling. "The alleged reliance of Deskovic's attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance," they wrote. "Similarly, we are not persuaded that … his situation is unique and his petition has substantive merit." A second appeal to Sotomayor's court resulted in the same decision, and the U.S. Supreme Court declined to hear his case. Deskovic stayed in prison for six more years before DNA evidence proved him innocent (and helped convict another man). Deskovic writes:

Judge Sotomayor will appear before the Senate next week. Given that she has been nominated to a lifetime appointment that affects all of our rights, what she did in my case—condemning me to a life sentence based on procedure in the face of an airtight innocence claim—should be part of the discussion. I want my case to be a part of the national discussion. I want Senators to ask Judge Sotomayor if she stands by her ruling, and whether she would rule that way in the future. If I could I would testify at the Senate confirmation hearing, about the human impact of Judge Sotomayor's putting procedure over innocence. Thus far, however, I have gotten no response from either side on Capitol Hill.

As Paul Wright, the editor of Prison Legal News, wrote to me in an email last week, Judge Sotomayor’s ruling against Deskovic would likely be seen as “a strong reason for her to be confirmed to the court since it shows she is outcome-oriented.” Wright continued: "The courts do everything they can to avoid reaching the merits of prisoners claims and instead love to dismiss on procedural technicalities."
It is decisions similar to this one that are offered up as proof that Sotomayor is a moderate, not an “activist,” judge—the disparaging term for jurists who render decisions based upon whether they actually serve the cause of justice. That progressives feel they must celebrate rulings like these in order to prove their nominee is in the "mainstream" is more of a condemnation of Sotomayor's supporters than of the judge herself.  It shows how far to the right that mainstream now runs—and how willingly liberals have been borne along by the current.
Check out MoJo's live coverage of the confirmation hearings here.

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