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 They also do not include the dozens and dozens of unpublished opinions from the Second Circuit for which habeas corpus has pretty much uniformly been denied.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.
Tomorrow -- Her district court decisions.
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.
Tomorrow -- Her district court decisions.
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