THE HEARINGS

Our next Supreme Court Justice, Sonia Sotomayor, sitting patiently as the senators blather on (Slate has this great chart comparing how many minutes she speaks with how many the senators do), was finally asked about the death penalty near the end of the day yesterday. In response, and to nobody's particular surprise, she lied.

The Q and A came from Senators Graham and Durbin and are mixed in with questions about abortion and terrorism. Graham focuses on the Puerto Rican Legal Defense and Education Fund, of which Sotomayor was a board member before becoming a judge, and on the by now infamous memorandum she signed and which urged the Fund to urge then Governor Carey to oppose reinstating the death penalty in New York.

GRAHAM: And quite frankly, that's, you know -- lawyers are lawyers. And people who have causes that they believe in have every right to pursue those causes.

And the fund, when you look -- you may have been a board member, but I am here to tell you, that file briefs constantly for the idea that taxpayer-funded abortion was necessary, and to deny it would be a form of slavery, challenged parental consent as being cruel.

And I can go down a list of issues that the fund got involved in, that the death penalty should be stricken, because it has -- it's a form of racial discrimination. What's your view of the death penalty, in terms of personally?

SOTOMAYOR: The issue for me with respect to the death penalty is that the Supreme Court, since Gregg, has determined that the death penalty is constitutional under certain situations.

GRAHAM: Right.

SOTOMAYOR: I have rejected challenges to the federal law and its application in the one case I handled as a district court judge, but it's a reflection of what my views are on...

GRAHAM: As an advocate...

SOTOMAYOR: ... the law.

GRAHAM: As an advocate, did you challenge the death penalty as being an inappropriate punishment, because of the effect it has on race?

SOTOMAYOR: I never litigated a death penalty case personally. The fund...

GRAHAM: Did you ever sign a memorandum saying that?

SOTOMAYOR: I signed the memorandum for the board to take under consideration, what position on behalf of the Latino community the fund should take on New York State reinstating the death penalty in the state.It's hard to remember, because so much time has passed...

GRAHAM: Yes, well...

SOTOMAYOR: ... in the 30 years since...

GRAHAM: We'll give you a chance to look at some of the things I'm talking about, because I want you to be aware of what I'm talking about.

Let me ask you this. I've got 30 seconds left. If a lawyer on the on the other side filed a brief in support of the idea that abortion is the unnecessary and unlawful taking of an innocent life and public money should never be used for such a heinous purpose, would that disqualify them, in your opinion, from being a judge?

SOTOMAYOR: An advocate advocates on behalf of the client they have. And so that's a different situation than how a judge has acted in the cases before him or her.

GRAHAM: OK. And the only reason I mention this, Judge, is that the positions you took or this fund took, I think, like the speeches, tell us some things. And we'll have a chance to talk more about your full life, but I appreciate the opportunity to talk with you.

SOTOMAYOR: Thank you, sir.

Then it was Senator Durbin's turn, and after a few minutes of throat clearing he pursued the topic.

A book which I greatly enjoyed, I don't know if you ever had a chance to read, "Becoming Justice Blackmun" a story of Justice Blackmun's career and many of the things that happened to him. Now, late in his career, he decided that he could no longer support the death penalty. And it was a long, thoughtful process that brought him to this moment.

And he made the famous statement, maybe the best-known line attributed to him, in a decision, Collins, vs. Collins, "From this day forward, I no longer shall tinker with the machinery of death" The opinion said, and I quote, "Twenty years have passed since" and this is 1994.

"Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency, or not at all. See Furman vs. Georgia and despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake."

Judge Sotomayor, I know that you've thought about this issue. Senator Graham made reference to the Puerto Rican Legal Defence Education Fund memo that you once signed on the subject. What is your thought about Justice Blackmun's view that, despite our best legal efforts, the imposition of the death penalty in the United States has not been handled fairly.

SOTOMAYOR: With respect to the position the fund took in 1980-81 with respect to the death penalty, that was, as I noted, a question of being an advocate and expressing views on behalf of a community on a policy choice New York State was making: Should we, or should we not reinstitute the death penalty? As a judge, what I have, and look at and realize is, that in 30 years, or 40, actually, there has been -- excuse me, Senator. Oh, I'm sorry.

DURBIN: It's all right.

SOTOMAYOR: ... enormous changes in our society, many, many cases looked at by the Supreme Court addressing the application of the death penalty, addressing issues of its application and when they're constitutional or not. The state of this question is different today than it was when Justice Blackmun came to his views.

As a judge, I don't rule in an abstract. I rule in the context of a case that comes before me and a challenge to a situation and an application of the death penalty that arises from an individual case.

I've been and am very cautious about expressing personal views since I've been a judge. I find that people who listen to judges express their personal views on important questions that the courts are looking at, that they have a sense that the judge is coming into the process with a closed mind, that their personal views will somehow influence how they apply the law.

That's one of the reasons why, since I've been a judge, I've always been very careful about not doing that. And I think my record speaks more loudly than I can...

DURBIN: It does.

SOTOMAYOR: ... about the fact of how careful I am about ensuring that I'm always following the law and not my personal views.

DURBIN: Well, and the one death penalty case that you handled as a district court judge, United States vs. Heatley, this is after, in 1983, I believe it was or 1981, I'm sorry, that you signed on to the Puerto Rican Legal Defense Education Fund memo recommending that the organization oppose reinstituting the death penalty in New York.

After you'd done that, some years later, you were call on to rule on a case involving the death penalty. Despite the policy concerns that you and I share, you denied the defendant's motion to dismiss and pave the way for the first federal death penalty case in Manhattan in more than 40 years.

Now, the defendant, ultimately accepted a plea bargain of life, and you rejected his challenge to the death penalty and found that he'd shown no evidence of discriminatory intent. So that makes your point. Whatever your personal feelings, you, in this case, at the district court level, ruled in a fashion that upheld the death penalty.

I guess I am trying to take it a step beyond. And maybe you won't go to where I want to take you, and some nominees don't. But I guess the question that arises in my mind is how a man like Justice Blackmun, after a life on the bench, comes to the conclusion that, despite all our best efforts, the premise of your 1981 memo is still the same; that, ultimately, the imposition of the death penalty in our country is too arbitrary. Minorities in America today account for a decision proportionate 43 percent of executions.

That's a fact since 1976. And while white victims account for about one-half of all murder victims, 80 percent of death penalty cases involve victims who are white. This raises from obvious questions we have to face on this side of the table. I'm asking you if it raises questions of justice and fairness on your side of the table.

SOTOMAYOR: In the Heatley case, it was the first prosecution in the Southern District of New York of a death penalty case in over 40 years.

Mr. Heatley was charged with being a gang leader of a crack and cocaine enterprise who engaged in over -- if the number wasn't 13, it was very close to that, 13 murders to promote that enterprise.

He did challenge the application of the death penalty charges against him on the ground that the prosecutor had made its decision to prosecute him and refused him a cooperation agreement on the basis of his race.

The defense counsel, much as you have, Senator, raised any number of concerns about the application of the death penalty. And in the response to his argument, I held hearings not on that question, but on the broader question of what had motivated -- on the specific legal question, what had motivated this prosecutor to enter this prosecution and whether he was denied the agreement he sought on the basis of race. I determined that that was not the case and rejected his challenge.

With respect to the issues of concerns about the application of the death penalty, I noted for the defense attorneys that, in the first instance, one back question of the -- the effects of the death penalty, how it should be done, what circumstances warrant it or don't, in terms of the law, that that's a legislative question.

And, in fact, I said to him -- I -- I acknowledged his concerns. I acknowledged that many had expressed views about that. But that's exactly what I said, which is, I can only look at the case that's before me and decide that case.

DURBIN: And this is a recent case before the Supreme Court I'd like to make reference to, D.A.'s Office vs. Osborne, involving DNA. It turns out there are only three states in the United States that don't provide state legislative access to DNA evidence that might be -- might exonerate someone who is in prison.

I am told that, since 1989, 240 post-conviction DNA exonerations have taken place across this country, 17 involving inmates on death row. Now, the Supreme Court in the Osborne case was asked, what about those three states? Is there a federal right to access to DNA evidence for someone currently incarcerated who questions whether or not they were properly charged and convicted? And the court said, no, there was no federal right, but it was a 5-4 case. So, though I don't quarrel with your premise that it's our responsibility on this side of the table to look at the death penalty, the fact is, in this recent case, this Osborne case, there was a clear opportunity for the Supreme Court right across the street to say, "We think this gets to an issue of due process as to whether someone sitting on death row in Alaska, Massachusetts or Oklahoma, where their state law gives them no access, under the law, to DNA evidence."

So I ask you, either from the issue of DNA or from other perspectives, isn't it clear that the Supreme Court does have some authority in the due process realm to make decisions relating to the arbitrariness of the death penalty?

SOTOMAYOR: The court is not a legislative body. It is a reviewing body of whether a particular act by a state in a particular case is constitutional or not. In a particular situation, the Court may conclude that the state has acted unconstitutionally and invalidate the act, but it's difficult to answer a question about the role of the Court outside of the functions of the Court which is we don't make broad policies. We decide questions based on cases and the principles implicated by that particular case before you.

There's the lie. (Actually, most of the answers I've quoted here are lies, but that last one is what set me off on this particular jag.)

I don't know what Sotomayor thinks about the death penalty. My guess, and it's only that, is that if pressed in some wholly off-the-record conversation she'd be a grudging supporter of the if-it's-done-right school. But I know that she doesn't believe the Court only addresses the "particular act by a state in a particular case."

Now this isn't rocket science.

Brown v. Board of Education did not simply decide "whether a "particular act by a state in a particular case" is constitutional. Instead, while building on a series of earlier cases finding various discriminatory practices unconstitutional, Brown did a much broader thing - it declared an idea, that public school education can be separate but equal, to be false and said, in effect, no state may act upon that false idea, and every state that has been acting on it must stop.

Roe v. Wade did not simply decide whether Jane Roe could legally get an abortion or even whether the Texas abortion law at issue was constitutional. It declared that women have a right, nationally imposed one, if you want to look at it that way, to abortions. Period.

And while we all know that Obama claims there was no litmus test for the Court, Sotomayor would never have made it through the selection process if she actually thought Brown or Roe was wrong.

But right or wrong, those decisions (and I could have chosen from dozens of others, but I'm not always so certain of Sotomayor's beliefs) are examples of the Court reaching far beyond the particulars. And, in fact, everyone wants it to.

Take the Second Amendment (about which I'll have a lot to say one of these days that is likely to irritate almost everyone). In District of Columbia v. Heller the Court said that the D.C. law banning handgun possession violated the Second Amendment which protects an individual, but apparently not unlimited, right to bear arms. Cases are working their way up to the Court now asking it to resolve whether the same rule applies to the states. The individual case they eventually take in will be from one state about its one law. But the answer will apply to all states and declare something about how their laws must operate.

That's what the Court does.

Here's the syllogism: Sotomayor knows that or she's a fool. She's not a fool. Therefore she knows that.

Here's the next part. If she knows that, she lied under oath to the Senate. As did Justices Roberts and Alito and Thomas. And Kennedy, Ginsburg, and Breyer. And Souter, the man she's going to replace. They all do these days. Ever since Bork, who pretty much told the truth.

Really, we ought to either shut this system of sham hearings down or find a way to insist that they have some substance.