According to this article, brand new Justice Sotomayor made her first public vote. It was in a capital case and the order is here. The court denied a request for a stay and for certiorari. Sotomayor voted with the more liberal justices in concluding that a stay should have been granted. Even though I think this was a section 1983 case (I believe it was one of those method of excecution = cruel and unusual punishment), it still is an encouraging sign for habeas petitioners from the new Justice.
By the way, I neglected to mention in my post about Davis earlier today that Sotomayor did not participate in the decision.
Now-Supreme Court Justice Sonia Sotomayor was sworn-in on Saturday. The first Supreme Court swearing-in ceremony to be broadcast live on this new invention they call "television." What will they think up next? Broadcasting Supreme Court arguments live over this new technology? Gee-Whiz, wouldn't that be neat-o.
I have noticed something funny over the past two days. The Second Circuit has issued six, count 'em six, opinions in which Sotomayor was on the panel. The six are available here, here, here, here, here, and here. The opinions do not list Sotomayor on the panel. Instead, she is replaced with an asterisk, like this:
"SACK and KATZMANN, Circuit Judges.*"
That's from the first link up there to a case called Green Island Power Authority. There is a corresponding footnote attached to that asterisk, which states:
"The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the 2 Supreme Court on August 8, 2009. The two remaining members of the panel, who are in 3 agreement, have determined the matter. See 28 U.S.C. § 46(d); Local Rule 0.14(2); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998)."
Considering that the average number of opinions each day is around 2 or 3, and there are 12 (or was 12) active circuit judges, plus a bunch of senior judges, plus many judges sitting by designation, that is an awful lot of opinions in cases for which she was on the panel.
Obviously, that is not a coincidence. One gets the sense that her colleagues were delaying the issuance of these opinions until she was officially confirmed. There are several possible reasons I can think of for this.
One, political -- they were holding back decisions so that they couldn't be used as potential ammunition during the confirmation battle. I haven't looked closely at these decisions to see whether they are controversial at all.
Two, administrative - it may just have been easier to wait. Sotomayor has been a little preoccupied with other matters, to say the least. It was probably difficult to get her final approval on these cases. Once she was no longer a member of the panel, it was okay to release them as the other two judges agreed.
Three, substantive - there is a chance that Sotomayor was considering dissenting in these cases and had been working on a dissent. I would guess that the dissent became moot once she was no longer a member of the panel.
Or maybe the Clerk's Office was just holding onto them as a group in case there was some other type of unforeseen issue as a result of the Supreme Court stuff.
Whatever the reason, I expect that there will be a few more * cases this week.
As reported, well, pretty much everywhere, Sotomayor has been confirmed as the newest Supreme Court Justice. My prior posts on what to expect from Sotomayor in habeas cases can be found here and here.
But as I stated in my original post on all of the Sotomayor stuff, too much attention is paid to Supreme Court nominations while not enough attention is paid to the Circuit Court nominations, who can have just as a big an impact on federal law, obviously including habeas cases.
There currently is one nomination to the Second Circuit currently waiting confirmation, Southern District Judge Gerard Lynch. Earlier this week, the Washington Post weighed in, urging that the Senate confirm him, as well as other pending nominations.
It is amazing to me that with such a large Democratic majority there are still numerous Obama nominations that have yet to be confirmed. I know that there are archaic Senate rules that allow the Republicans to obstruct all of these nominees, but come on! The number of key nominations that have gotten out of committee but are still pending is ludicrous.
But taking a step back, I will acknowledge a little hypocrisy here. I accuse everybody of making such a huge deal out of Supreme Court nominees and not paying enough attention to Circuit Court nominees. Why haven't I posted anything about Judge Lynch?
Well, maybe I should. Offhand, I do not know too much about Judge Lynch in habeas cases. If my memory serves me correctly (and it does, see Bailey v. Rivera, 07 Civ. 2181, 2007 WL 3120904 (SDNY Oct. 24, 2007)), he rejected an Apprendi claim regarding the New York State discretionary persistent statute even though two other federal judges had held that the statute was unconstitutional. See Washington v. Poole, 507 F.Supp.2d 342 (SDNY 2007); Portalatin v. Graham, 478 F.Supp.2d 385 (EDNY 2007). Once again, all of those cases are currently pending before the Second Circuit.
So I guess that's not a good start for habeas petitioners. When I get the chance, I'll look through his previous habeas decisions to see if there is anything interesting.
As I mentioned at the end of my last post, I wanted to quickly touch on the Supreme Court's cert. grant in Briscoe v. Virginia. And, as I did in my last post, I am going to rely on Legal Aid's Andy Fine's insights to provide some analysis.
Less than a week after the Supreme Court decided the potentially far-reaching decision in Melendez-Diaz, the Court granted cert. in Briscoe. What was so crazy about this was that Briscoe raised a Crawford issue very similar to the one present in Melendez-Diaz. SCOTUSblog stated that the issue in Briscoe, as stated in the cert. peition, is “If a state allows a prosecutor to introduce a certificate of a
forensic laboratory analysis, without presenting the testimony of the
analyst who prepared the certificate, does the state avoid violating
the Confrontation Clause of the Sixth Amendment by providing that the
accused has a right to call the analyst as his own witness?”
As Andy mentioned in the email quoted in the last post, there was immediate speculation that the cert. grant in Briscoe was done in an attempt to limit the scope of Melendez-Diaz. Underlying this speculation was the thought that Sotomayor may end up being to the right of Souter on criminal justice matters, so she could side with the dissenters from Melendez-Diaz.
I read somewhere that it is not completely unprecedented, but still exceedingly rare, for a cert. grant to follow a fresh opinion on nearly the same issue.
I have always been confused by the cert. grant in Briscoe. And I am especially confused about the speculation that Sotomayor may side with the dissenters.
So, in response to Andy's last e-mail, I wrote to him:
I am still really confused by the Briscoe grant. Assuming that the dissenters were the ones who voted for cert. and assuming that this was on the belief that Sotomayor would vote with them, I think that their strategy will fail. Even though I think Sotomayor will be to the right of Souter on criminal issues, I don't think her judicial philosophy will be so advanced in her first year on the bench that she will be willing to vote to restrict (or even overturn) such a recent holding. Her current judicial philosophy (as she reinforced in her opening statement yesterday) is to be faithful to the law. Additionally, doesn't a new judge often vote almost identically to an already sitting judge? If so, then which of the dissenters will she mimic? Kennedy? I highly doubt that. It will more likely be Breyer or (hopefully) Ginsburg or Stevens.
Put simply, I don't think Sotomayor will shake things up that quickly and her voting pattern, at least during her first year, will be very similar to one of the members of the majority of M-D.
Andy responded that a prior Sotomayor opinion shows that she seems very comfortable reaffirming the holding of Melendez-Diaz. He wrote:
I'm also heartened by these aspects of Sotomayor's opinion in US v. Saget, 377 F3d 223:
"Crawford at least suggests that the determinative factor in determining whether a declarant bears testimony is the declarant's awareness or expectation that his or her statements may later be used at a trial. The opinion lists several formulations*229 of the types of statements that are included in the core class of testimonial statements, such as “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at ----, 124 S.Ct. at 1364 (internal quotation marks omitted). All of these definitions provide that the statement must be such that the declarant reasonably expects that the statement might be used in future judicial proceedings.FN2 See id. Although the Court did not adopt any one of these formulations, its statement that “[t]hese formulations all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it” suggests that the Court would use the reasonable expectation of the declarant as the anchor of a more concrete definition of testimony. See also id. at 1365 n. 4 (noting that declarant's testimonial statement was knowingly given to investigators)."
"FN2. Although one of the formulations, taken from Justice Thomas's concurrence in White, 502 U.S. at 365, 112 S.Ct. 736, does not explicitly require that the statement have been made with the reasonable expectation that it would be used at a later trial, Justice Thomas's definition of testimonial statements appears to be narrower than that contemplated by Crawford, as it includes only “formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” Id. By definition, a declarant who gives a statement in one of the formalized contexts cited by Justice Thomas must reasonably expect that his or her statement could be used in future proceedings. This definition is, as Crawford notes, consistent with the other two formulations, which are explicitly conditioned on the reasonable expectation of the declarant. See Crawford, 541 U.S. at ----, 124 S.Ct. at 1364."
Me again: What's nice about the footnote is that not only does she seem to be in tune with the holding of Melendez-Diaz, she also seems to disagree with Thomas's concurring opinion in Melendez-Diaz in which he tried to limit the holding. So it would certainly seem that Sotomayor will not be lending a hand to those trying to limit Melendez-Diaz in Briscoe.
Yesterday, the New York Times had an article about the habeas case of Jeffrey Deskovic in which Sotomayor was on the panel that affirmed the district court's denial of habeas.
Deskovic's story is truly tragic. He was convicted of the murder of one of high school classmates after he falsely confessed to the crime. I know it is hard to believe, but people falsely confess to crimes. According to the Innocence Project, there have been several exonerations in the DNA era even though the defendant confessed to the crime. Deskovic is one of them, as DNA tests on semen found in the victim exonerated him.
However, before the exoneration, Deskovic spent 16 years in prison during which he was unsuccessful in his challenges to his conviction.
One of these unsuccessful challenges was the habeas petition referenced in the article. In that case, the district court dismissed his petition since it was filed 4 days after the conclusion of the one-year time period (See FAQ 6). Deskovic asked that the tardiness be excused because his attorney was told inaccurate information about the time period in which to file the petition. In addition, he asked that the court review the case because he was actually innocent. The district court dismissed the petition as untimely.
In a unpublished summary order, a two-judge panel of the Second Circuit affirmed. One of the judges was Sotomayor, and it was a two-judge panel since one of the judges was sick and did not take part. A two-judge decision is acceptable so long as the two judges agree. In the unpublished order (located in a table at 210 F.3d 354), the court concluded that the petition was time-barred. Following clear precedent, the court stated that attorney negligence is not an "extraordinary circumstance" that would justify a failure to comply with a time-limitations period. The court did not address the innocence claim.
I am not exactly sure what to make of the article itself. It kind of reads like a hit piece on Sotomayor. But that's a little unfair. As I have stated before, she is a legal technocrat -- she strictly adheres to precedent and that's what she did here. It is troubling that she did not have the ability to see that there was a troubling question as to Deskovic's guilt, but of course neither did the other judge, Rosemary Pooler, who is one of the most liberal judges on the Second Circuit. Also, in opinions she authored, Sotomayor has expressed concern about strict adherence to the habeas procedural rules when a compelling showing of actual innocence has been made. See Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004); Alexander v. Keane, 991 F.Supp.2d 329 (SDNY 1998). Of course, the article does not mention this.
One can feel a tremendous amount of empathy for Deskovic, but that is separate from whether Sotomayor should be criticized in this case. Really, the Deskovic case says more about the unfairness of the system and how the law itself is ridiculously slanted against criminal defendants and habeas petitioners than it does about anything Sotomayor did in the case. When a judge has been on the bench as long as Sotomayor, the odds are high that a case such as this would happen: the law does not entitle the defendant to relief, but the defendant later is shown to be innocent. This is particularly true in the DNA era. Really, this case should force people to ask important questions about police conduct and how the system is currently structured that would allow an innocent person to spend 16 years in prison.
As one of my favorite bloggers notes, the Sotomayor nomination places people, such as people who represent habeas petitioners, into a difficult position. They are being forced to defend a judge who has not shown that she will be hospitable to habeas petitioners' claims. They almost have to say -- look how qualified she is, she reflexively rules against habeas petitioners! Isn't she wonderful? I say this since I am not happy with the fact that Sotomayor denied this habeas petition. I wish judges would give actual innocence claims far more weight than they do. I wish the one-year time limitations was not so onerous and the federal courts more generous in allowing untimely petitions to proceed. But in this case Sotomayor did what 99.9999% (if not 100%) of every federal judge would do. It really is not fair to criticize her about this case.
UPDATE: For similar sentiment, read this post at TalkLeft. Her take: don't blame Sotomayor, blame the AEDPA. She recommends getting rid of the AEDPA.
I think the combination of her experience as a prosecutor and her judicial philosophy as a legal technocrat will put her to the right of Souter, but not so far as to be in the conservative camp. As I stated before, her decisions show that she is a legal technocrat. She faithfully applies the law, and in criminal and habeas cases it slants in favor of the prosecution. At the same time, she has shown some willingness to interpret the AEDPA in a way favorable to habeas petitioners, but she has never gone so far as granting habeas relief in any of her published opinions. As the article shows, she does seem to balance her experience as a prosecutor with her understanding of socio-economic connections to crime. So she will be tough with some empathy for some types of criminal defendants. Any attempt to describe her in a different way is wrong.
Yesterday, I looked at the circuit court opinions that Judge Sotomayor authored. I came to the conclusion that, while she has yet to author an opinion that granted habeas relief, she has, more often than not, interpreted the AEDPA in a way that can be looked at as favorable for habeas petitioners. Her circuit court opinions provide ammunition for both sides in the debate, but generally show that she will probably reside somewhere to the right of Souter on the political spectrum in habeas cases.
What do her district court opinions show?
As I mentioned yesterday, I was able to find 16 published habeas decisions. She ruled against the habeas petitioner in every single one. This is not to say that these are her only habeas opinions. There could be some unpublished decisions, including one that could have granted habeas relief. But that's pretty unlikely. When a district court judge grants habeas corpus, the judge is typically going to be writing a detailed opinion that thoroughly addresses every aspect of the claim. The judge is going to want to protect herself from getting reversed, which will require that every part of the analysis be solid. Based on the amount of energy expended on such cases, the judge will request that the opinion be published as it will typically be an opinion that the judge is proud of. Further, a habeas grant is often big news and can be a landmark, defining opinion, and the law reporters (who I believe are the ones who ultimately decide whether to publish an opinion) are aware of all of this. They know that a grant is a big deal and will usually publish it, particularly when a judge requests that it be published.
Thus, I believe it is safe to say that the lack of a published opinion in which Sotomayor granted habeas relief means that she never did.
However, she was only a district court judge for about 6 years. Considering the fact that we have recently learned that habeas relief is granted less than 1 percent of the time, the fact that Sotomayor did not grant habeas relief in those 6 years (particularly because she only seemed to have been assigned to less than 20 cases) is not really that suprising or revealing. When added together with her 12 other habeas denials at the circuit level, it becomes a bit more revealing. But today we are looking at the district court decisions.
Is there anything else in these decisions, besides the outcome, that is of value here?
Actually, there is and it demonstrates that she is clearly not a liberal, in any sense of the word, in habeas cases.
There are two important things that I can see to support this. First, as Kent Scheidegger stated in his analysis (discussed in my previous post), Sotomayor ruled against a habeas petitioner on a claim soon after a different district court judge in the same district had ruled in the petitioner's favor. In a case called Rodriguez, Judge Sotomayor held that the newly imposed one-year statute of limitations created by the AEDPA (see FAQ 2 and 6) did not violate the Suspension Clause. I am assuming that everybody knows what the Suspension Clause is (Okay, it says, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."). Another judge had ruled right before Rodriguez that the statute of limitations did violate the Suspension Clause.
If Sotomayor was a liberal activist judge, she would have leaped in line behind this other judge and found this part of the AEDPA to be unconstitutional. However, she did not and ruled against the habeas petitioner. Notably, the Second Circuit affirmed Sotomayor's opinion "for substantially the reasons stated" in her opinion.
There is another subtle aspect of her habeas decisions that demonstrate that she is far from a liberal. It also has to do with the statute of limitations. Prior to the AEDPA, there was no time limit on filing a habeas petition. It could be filed years and years after a conviction became final. The AEDPA changed that and instituted a one-year statute of limitations for filing a habeas petition. The one-year statute of limitations could easily be applied to those petitioners whose convictions had not yet become final.
But what about those petitioners whose convictions had already become final? Especially those whose one-year time limit had run out long before the AEDPA was based.
When faced with this issue, most circuit courts followed the typical path of granting petitioner one year from the date that the AEDPA became effective to file their petitions. It was a reasonable, workable way of approaching the situation.
Of course, the Second Circuit did not do it that way. Instead, in a case called Peterson, the Second Circuit concluded that these habeas petitioners would only be granted a "reasonable time" to file a petition after the effective date of the statute. In other words, a petition would be considered timely if it was filed within a reasonable time of the effective date of the statute. Of course, the Second Circuit did not define what would be reasonable. Instead, the case apparently gave the district court's a wide range of discretion in determining what would be a reasonable time on a case by case basis.
This proved to be a little arbitrary and unfair. The Second Circuit eventually came to its senses and, without officially overruling itself, held in a case called Ross that any petition filed within one year of the effective date of the statute was timely.
But in between these two decisions, the district court judges in the Second Circuit issued dozens and dozens (if not hundreds) of opinions on the issue of whether a petitioner had filed his petition within a reasonable time after the AEDPA became effective.
Because this was a discretionary decision, it is easy to see that a liberal judge would be very willing to view a reasonable time broadly and allow a petitioner to pursue his petition in most situations. At the same time, a more conservative judge would be eager to read a reasonable time very narrowly and dismiss many petitions as time-barred. Obviously, these labels are oversimplifying it a little. But just a little. Since the discretion was not carefully defined by the Second Circuit, it did give district court judge's a lot of power to decide what's reasonable. When discretionary authority is that broad, it can allow a judge's political preferences to break through.
And guess which camp Sotomayor fell into? My review showed that she dismissed at least four as untimely, saying that they had not been filed a reasonable time after the effective date, even though they had been filed within one year of the effective date. While this is not a large number, it is important to note that these four were all decided within one week of one another (as well as one more also dismissed as time-barred, but had been filed over a year after the effective date). Thus, it appears that she simply swept these out the door in rapid succession. And there are no opinions out there to counter balance those in which she found a petition to be filed in a "reasonable time."
In her defense, most judges in the Second Circuit were eager to dismiss these petitions as untimely under Peterson. In an opinion she wrote in Albert (which was eventually reversed after Ross), she listed many, many cases that dismissed petitions filed within one year of the effective date of the statute. So she was not alone. Nevertheless, a liberal activist judge would have exercised her authority in a different way. Instead, she was well within the mainstream, federal judge discretionary behavior.
It is also important to note that, although Albert was eventually reversed, the decision itself is thoroughly reasoned. She obviously reviewed many, many opinions to see precisely how other judges had been addressing the "reasonable time" conundrum.
And that seems to be typical of Sotomayor.
So, once again, Sotomayor reveals herself, in her district court habeas opinions, to be a legal technocrat -- she follows the law and precedent. She looks to other judges for guidance, as judges should do. She is nowhere near a liberal judicial activist. And, once again, she never ruled in favor of a habeas petitioner. There isn't anything here for her detractors to use as ammunition.
As I was drafting my post yesterday on Sotomayor's opinions, Kent Scheidegger over at Crime and Consequences also put together a (slightly more in depth) legal analysis of Sotomayor's opinions dealing with the AEDPA (see FAQ 2). It is well worth a read for habeas followers.
He makes a real interesting point that I wish I had made yesterday. He says that a judge's decisions on the AEDPA are insightful because:
"The law is bitterly resented by many federal judges precisely because
it was enacted to curtail their ability to lord it over state courts
and because it rejected the notion that their judgments are inherently
superior. 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. Reversing the evasions has been a major part
of the Supreme Court's workload, although, as one judge boasted, they
can't reverse them all."
His analysis points out that Sotomayor has been very willing to apply the AEDPA and she did not show the hostility to the statute that other federal judges demonstrated (including ironically enough Justice Souter, see my previous post on Souter).
Once again, it tends to show that Sotomayor is far from a liberal activist judge. As I stated yesterday, she is a judicial technocrat -- she impartially follows the laws as written. Precisely what a judge is supposed to do.
In this vein, Scheidegger concludes:
"On the whole, these are well-considered, well-written opinions that
apply the language of the statute and the precedents of higher courts,
easily within the limits in which reasonable people may differ."
I have attempted to scan all of Sotomayor's published habeas decisions as both a district court judge and a circuit court judge. They break down into three main categories, with a lot of subcategories.
As for the main categories:
First, there are her published decisions as a district court judge between the years 1991 and 1997.
Second, there are the published decisions that she authored as a circuit court judge between 1997 and today.
Third, there are the published decisions issued by a three judge panel in which she was a member, but she did not author the opinion.
The quick results: As a district court judge, she issued 16 published decisions in habeas cases. She ruled against the habeas petitioner in every single case.
As a circuit court judge, she has authored 13 published decisions, ruling against the habeas petitioner in 12 of them, and vacating and remanding for further proceedings in favor of the petitioner in the last one, but not actually granting habeas relief.
She has been on a panel for 26 other published opinions in habeas cases. The panel has granted habeas relief in 6 of these opinions, denied habeas relief in 14 of them, ruled in favor of the petitioner on procedural issues in 5, and ruled against the petitioner on a procedural issue in 1.
What do these raw numbers mean? Not much. They also do not include the dozens and dozens of unpublished opinions from the Second Circuit for which habeas corpus has pretty much uniformly been denied.
What can be said about these numbers? Well, what jumps out is that Sotomayor has never authored an opinion that grants habeas relief. Only once did she provide any type of relief to a habeas petitioner, a remand for further proceedings, which ended in a habeas denial (in a case called Galarza). So far, when she writes, the habeas petitioner is guaranteed to lose. 0 for 29.
But obviously, the world and her opinions are more nuanced than that. Let me use this post to talk about the circuit court opinions she authored. In the next two posts, I will address the other two categories.
Looking at an opinion, there can be a lot more than just win or lose. A petitioner can still lose even in a situation where the court decides an issue favorable for a habeas petitioner.
For example, the court can interpret a section of the AEDPA in a generally favorable way for habeas petitioners, but that the particular habeas petitioner in that case was not entitled to relief. That happened in at least three of the cases that I read (Galdamez, Green and Gutierrez) and an additional very important one that held that a petitioner could bring an untimely petition if he could show that he was actually innocent (Doe). On the other hand, she did provide a anti-habeas petitioner interpretation in an appeal with the longest name I have ever seen (Hizbullahankhamon). Neverthelss, Sotomayor was not unwilling to side in favor of a habeas petitioner on certain interpretations of the AEDPA. This means that there is fuel for both sides -- the pro-Sotomayor can say, look she is obviously not a liberal, she has never directly granted habeas relief. The other side can respond, that's not the whole story, she has decided critical issues with broad impact for habeas petitioners. Both sides would be correct.
What else can be said about her opinions? Of the 12 opinions in which she denied habeas relief, 10 of them were affirming a lower court dismissal and 2 of them (Benn and Doe) were reversing lower court decisions in favor of the petitioner.
Of these, the latter two say more about any political philosophy she may have. It would be expected that a liberal judge would be more inclined to agree with a decision granting habeas relief. I mean, there is another judge out there who thinks habeas relief should be granted. Unless the lower court's reasoning was irrational, the proto-typical liberal judge would eagerly get behind the judge who was willing to rule in favor of a habeas petitioner. At least, that's how the Republicans would look at it. The flip side of that is that a judge who is willing to reverse the grant of a writ cannot be described as a liberal. At least, it would make it a lot harder to describe the judge in that way. So here, Sotomayor was given two opportunities, as the author of an opinion, to stand behind the grant of habeas relief. But in both situations, she overturned the grant. It definitely shows that she is no knee-jerk liberal. Actually, not even close.
In the end, the habeas opinions that she authored don't say much, but they do provide some ammunition for each side and maybe some hope for habeas petitioners. She has never granted habeas relief, but she has more often than not interpreted the AEDPA in a way that is favorable to habeas petitioners. She clearly is not automatically on the side of the habeas petitioner, but at least on one occasion she did remand a case to allow a habeas petitioner another opportunity to pursue his claim (even though the petitioner eventually lost).
From her authored habeas decisions, my conclusion is that we can probably expect Sotomayor to be slightly to the right of Souter on habeas matters, but not enough to change the current dynamics on the Court. She seems willing to interpret the law in a favorable way for habeas petitioners, which will generally put her comfortably in the liberal camp. But she does seem a little unwilling to ultimately grant habeas relief. That may change in the Supreme Court, especially when she has to start deciding upon death penalty cases, which she has had the good fortune of avoiding up until now. Or the reluctance to grant relief may not end and she will stake out a more centrist spot on the court next to Kennedy, making the outcome of cases unpredictable. It's very difficult to know. One thing that can be expected -- a habeas petitioner will need to work to get her vote. She will not automatically be in favor of the petitioner. Her vote will be available, but the petitioner will need to win her over.
Back from Japan and what do I get? A Supreme Court nominee! Second Circuit Judge Sonia Sotomayor.
I know, I previously said that too much weight is placed on Supreme Court nominees while the almost equally important circuit court judge nominations barely get any attention.
Nevertheless, I have been enjoying the great political theater so far surrounding the nomination. More important, I have had some personal interactions with Judge Sotomayor, so I feel a tiny bit of connection to the announcement.
Since this is the Habeas Corpus blog, I will provide some insight into Sotomayor's habeas opinions in a separate post.
But I did want to add my personal opinion about the pick since I have a couple. First, I mentioned political theater above, and that is precisely what is going on. There really can be no principled opposition to this nomination from the Republicans. Sotomayor is a disciplined, legalistic judge who never ventures into the area of judicial activism. As E.J. Dionne wrote today, the people who should be complaining are liberals. Of all of the potential nominees, she is the most conservative. I have great fears that she will not even be as liberal as Souter, who was more of a Center-Left type judge.
Indeed, I would be very disappointed in the pick if I didn't believe that Judge Sotomayor will be a great Supreme Court judge. But I am convinced she will be. In my own personal interactions with her (which were limited but direct), she is an extremely nice person. One of the nicest lawyers I have ever come across. She was very easy to interact with and always very positive. In the Supreme Court, where you have to work well with others, she will be a great addition. Also, from what I know about her opinions, they are very by the book and hold very closely to the law. They are not so much "opinions" but rather technical analyses of the law. Hopefully, this will be from a left of center perspective when she is on the bench. But I don't think that is guaranteed. Her opinions are precisely what you would want from a judge -- a straightforward, practical view of the law, with an impartial application to the facts.
Which makes the opposition to her nomination laughable. She may end up being Obama's Souter -- someone who does not become the judge that people in the president's party had hoped she would be. In other words, just as Souter disappointed Republicans, Sotomayor may very well end up disappointing those Democrats who are supporting her nomination now. She may end up being more like Kennedy than Souter. But in the end, nobody really knows.
Obviously, the best way of trying to read those tea leaves is to read her opinions. But what I think people are finding is that they don't really say much. Unlike Roberts or Alito, it really is not clear what her political agenda may be. People have short memories, but the nomination process of Roberts and Alito was a bit surreal and nothing like Sotomayor's so far. During their nominations, the media and the Republicans went out of their way to try and show that these guys were not as hard-core conservative as everything they had written showed them to be. I remember reading how Roberts had represented poor people before the Supreme Court at some point and Alito was not really the crazed conservative zealot who spent all of his time speaking at Federalist Society events. Of course, they have both turned out to be to the right of Thomas and Scalia, something which was easily predictable to anybody who had a functioning brain. So now we are watching how the media and the Republicans are going nuts with absurd attempts at showing that Sotomayor is even more liberal than Teddy Kennedy. The whole thing would be laughable if it wasn't so painful to rational people.
I think Sotomayor's biggest problem is that her opinions have been so apolitical that there is nothing in them to stop the Republicans from making up her political philosophy. But of course her ability to remain impartial is precisely why she will make a good judge. Once again, absurdity at its extreme.
In the end, it won't matter. There will be ridiculous Republican grandstanding during the confirmation hearing and she will then get confirmed . . . easily. The Republicans only goal at this point will be to delegitimize her as a judge. That may end up working. As much as I disagree with Thomas, I can't stand it when people describe him as a bad or less than capable judge. This is a result of the ugly confirmation process, which delegitimized him in the eyes of many people (well, at least in the eyes of many liberals). But he writes well-analyzed, easy-to-read opinions. He has been a perfectly competent Supreme Court judge. I am not saying that the nasty process wasn't deserved in his case. I am just saying that it left him delegitimized as a judge, and I don't think that's fair. And I believe that is exactly what the Republicans want to do to Sotomayor. It's tragic.
To get back to my original point, the best way to see what kind of judge Sotomayor will be is to look at her opinions. All over the internet, people have been doing this. It's actually kind of fun for me with all of the information that is out there. As usual, SCOTUSblog has had great coverage (for example, here). I like what Sentencing Law and Policy has said here, here and here. There's a lot out there.
And I will add to it in the next post. I will review her habeas decisions. Here's a preview: Sotomayor has NEVER authored a published opinion granting habeas relief. Neither as a district court judge or as a circuit court judge.
What is my take on that? I will save it for the next post. It will obviously be a little more nuanced than "she's conservative because she never granted habeas relief."