we have stopped being a civilized nation

Shortly before 8 Thursday night, Bily Ray Irick died.  He was killed by prison guards in revenge for the rape and murder of 7-year-old Paula Dyer 32 years ago.

Earlier on Thursday, and without addressing the merits of his requests, the Supreme Court denied the last effort to stop or delay the killing.  Sonia Sotomayor dissented.  

In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this “rush to execute” without first seeking every assurance that our precedent permits such a result. No. M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 1. If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism. I dissent. 

But Really, There's Nothing To Be Done - UPDATE

I've quoted from then-Chief Justice Moyer's dissent in State v. Fears more than once.

Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences.  In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.

Fears was appealing his conviction and death sentence.  It was another in a string of cases in which the Ohio Supremes recognized that prosecutors repeatedly engaged in misconduct and warned that one of these days they might do something about it.  

I've often quoted, too, Cathy Cook's word in the same court about the same prosecutor just a week after Fears came out. She quoted Moyer's words, and then told the Justices,

You've got to make them lose to make them learn.

The court didn't make them lose.  Cases since then demonstrate clearly that the prosecutors didn't learn.

* * * * *

Duane Buck remains on death row in Texas though within the next couple of weeks he'll be asking the Texas Court of Criminal Appeals to grant him a new sentencing hearing. 

Buck, you'll recall, is the one whose lawyers entered into evidence at the sentencing phase of his capital trial their expert's report saying, among other things, that because Buck was African American he was especially likely to be a violent sort and future danger.  And then they had him testify to the same thing.

Samuel Alito, no friend of the capitally sentenced he, said the testimony was "bizarre and objectionable."  (Scalia and Breyer joined his opinion.)  Oh, he didn't say it was reversible.  He didn't even say it was enough to make the Court hear the case.  Just that it was "bizarre and objectionable."  

Perhaps Justices Thomas, Ginsburg, and Roberts agreed.  Perhaps not.  They didn't join Alito's opinion, and none wrote a separate one.  On the other hand, none of them voted to hear the case.  

The dissenters from the refusal to hear it did file an opinion, written by Sotomayor (Kagan joined it).  It begins this way.

Today the Court denies review of a death sentence marred by racial overtones and a record compromised by misleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance—especially in a capital case—I dissent and vote to grant the petition.

* * * * *

And then there's Bongani Charles Calhoun.  The feds down in Texas prosecuted him for involvement in a drug conspiracy.  Sotomayor (this time joined by Breyer) tells the relevant parts of the story.

The primary issue was whether Calhoun knew that the friend he had accompanied on a road trip, along with the friend’s associates, were about to engage in a drug transaction, or whether instead Calhoun was merely present during the group’s drive home, when the others attempted to purchase cocaine from undercover Drug Enforcement Agency (DEA) agents. . . .

The issue of Calhoun’s intent came to a head when the prosecutor cross-examined him. Calhoun related that the night before the arrest, he had detached himself from the group when his friend arrived at their hotel room with a bag of money. He stated that he “didn’t know” what was happening, and that it “made me think . . . [t]hat I didn’t want to be there.” . . . The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prosecutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

Got it?  That last bit, the racial stereotyping and appeal to prejudice (did I mention that Mr. Calhoun is himself of what used to be politely known as a person of the "colored persuasion"?) is the problem.

By suggesting that race should play a role in establishing a defendant’s criminal intent, the prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation. There was a time when appeals to race were not uncommon, when a prosecutor might direct a jury to “‘consider the fact that Mary Sue Rowe is a young white woman and that this defendant is a black man for the purpose of determining his intent at the time he entered Mrs. Rowe’s home,’” Holland v. State, 247 Ala. 53, 22 So. 2d 519, 520 (1945), or assure a jury that “‘I am well enough acquainted with this class of niggers to know that they have got it in for the [white] race in their heart,’” Taylor v. State, 50 Tex. Crim. 560, 561, 100 S. W. 393 (1907). The prosecutor’s comment here was surely less extreme. But it too was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason.

So, of course, the Court granted cert and then ordered a new trial voted unanimously not to hear the case.  Because, you see, 

Inexplicably, however, Calhoun’s counsel did not object to the question at trial.

So the burdens shift and the legal standards are messy and the arguments weren't really made properly in the lower courts and good golly Miss Molly.

Hell, even Sotomayor, for all she wrote, didn't vote to hear the case.  Nevertheless, she expressed her abiding good wishes.

I hope never to see a case like this again.

And she won't, of course.  

Until the next time. Because, as Chief Justice Moyer said,

Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences.  In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.

And as Cathy Cook added,

You've got to make them lose to make them learn.

   Calhoun v. US by  

UPDATE

Ken at Popehat identifies AUSA Sam L. Ponder (ponder that, if you will) as the prosecutor who made what Sotomayor generously described as the "racially charged remark."   Then he asks the altogether proper question.

[W]hy does the system protect the names of prosecutors even on the rare occasions that the system criticizes them? Why wouldn't Justice Sotomayor call out AUSA Sam L. Ponder by name if she found his conduct so remarkable that she penned an opinion about it even as she agreed to deny cert? What expectation of functional anonymity does Mr. Ponder have? Isn't that just part of a system that makes it vanishingly rare for prosecutors to be held accountable in any way for misdeeds?

The reason, of course, the same reason the courts don't make them lose, is that the system doesn't really care.

Law of Rule.

The Dog That Didn't Bark

They still actually need something that looks like evidence.

Breathe a sigh of relief.

You'll recall that back in June, in Melendez-Diaz v. Massachusetts, the Supreme Court said that reports of forensic analysts were testimonial and that criminal defendants had a right under the Confrontation Clause of the Sixth Amendment to insist that the people who actually conducted the examinations or did the testing appear in court to present their results. That is, if the government wants to present a lab report as evidence, it has to make the analyst who prepared the report available for on-demand cross-examination.

It was a 5-4 decision (opinion by Scalia), and the four were decidedly unhappy.

Melendez-Diaz came out on June 25. Four days later, June 29, the Court agreed to hear Briscoe v. Virginia, a case asking whether a rule that says the defendant can subpoena in the lab experts as part of its case satisfies the Confrontation Clause. That question might seem worth answering, except that the Court answered it in Melendez-Diaz. No. The state has to prove its case. The defendant doesn't need to disprove it. The Virginia approach satisfied the Compulsory Process Clause of the Sixth Amendment. It did nothing for the Confrontation Clause.

So what was the point? The changing of the guard.

Exit Justice David Souter. Enter Justice Sonia Sotomayor. Souter was in the majority. Perhaps former prosecutor Sotomayor would vote the other way.

Time passed. Briscoe was briefed. It was argued earlier this month. Meanwhile, Viginia changed its law to comply with Melendez-Diaz. And the rest of us sat around waiting to find out if the court would overrule itself in a mere 7 months. Today, we got the answer.

The Court would do nothing. Here, in its entirety, unsigned and without dissent, is the Briscoe opinion.

We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).

It gives away no secret of the criminal defense lawyer fraternity to say that we don't want to fight again battles we've already won. Briscoe offered no opportunity for the law to get better. It gave the Court no means to expand the right of confrontation. All it could do was make things worse. Frankly, it's hard to think that the Court had any reason to agree to hear Briscoe other than to make things worse.

The interesting question now is what went wrong? Why didn't the Court overrule - or at least limit - Melendez-Diaz? And if not that, why didn't the dissenters in that case dissent again?

It's hard to see this as simply the effect of the new Justice refusing to overrule her predecessor. And it's altogether implausible to think it's merely that the Court has too much respect for precedent to overrule - or even speak out against - what it did just last term.*

Here's my guess. The government went too far.

It's always seemed to me that more cases are lost at oral argument than won. There's always the chance that the attorney for the state (which is, after all, usually the winner) will say something so mind-bogglingly stupid that the court just stops and stares. It happens more than you'd think. Mostly, though, nothing comes of it. By the time they vote, they've left the amazement behind.

Still, once in a while, on rare occasions, something just offends, and they can't get past it. So here's my theory.

The Solicitor General shared argument time with Virginia. In response to a string of questions, the Assistant SG, albeit grudgingly, acknowledged that while there might be some undefined due process problem with it, the Confrontation Clause did not actually require the state to present witnesses at trial in order to obtain a conviction. Affidavits would do. If the defendant wanted to cross-examine the authors of the affidavits, the defendant could call them as witnesses.

JUSTICE SOTOMAYOR: Could you -- are you suggesting -- or are you saying even a trial by affidavit is okay under the Confrontation Clause? Is that your position?

MS. KRUGER: Our principal submission is that the Confrontation Clause allows the government to rely on affidavits, so long as it bring the affiants into court, so that the defendant can ask whatever --

(Transcript here.)

At which point, to paraphrase Arlo Guthrie, they all moved away from her from behind the bench.

-----------------
*Friday's decision in Citizens United v. Federal Election Comm'n demonstrated just how activist this allegedly minimalist Court can be. It decided to answer a question that had not been presented to it and that was wholly unnecessary to resolution (either way) of the question it had agreed to answer. It ordered the parties to brief the new question. And then it issued an opinion overturning decades of prior law.

Judge - not much longer

By a vote of 69-31, she now just awaits swearing in. I suppose it's time I dropped the cute game of caller her "still Judge" and the like and got used to Justice Sotomayor. (Though, really, she's still just a judge, won't be Justice Sotomayor until she's sworn in.)

If the Republicans (31 of them, anyway) are right, she'll now throw off the, er, robe of moderation and obedience to the law and demonstrate that she's really a bomb-throwing radical tethered to nothing but her sympathy for underdogs of color. Rule of law be damned, she's unleashed.

Or maybe not. She seems, really, the most moderately conservative of possible appointments, one likely to fit in most comfortably as a less airy and less libertarian Anthony (the Constitution means whatever I say it does) Kennedy, though probably a bit more open to civil rights arguments and less open to civil liberties ones. The republic that withstood Dred Scott v. Sanford, Plessy v. Ferguson, Lochner v. People of New York, Korematsu v. United States, and Bush v. Gore (or perhaps Roe v. Wade, Mapp v. Ohio, Furman v. Georgia, and Tinker v. Des Moines School District, depending on your point of view) will withstand this, too.

The larger truth, of course, is that predictions are just that. Justices have surprised. So, of course, have movie stars (the report on Fred Astaire's screen test for Paramount was, "Can't act. Can't sing. Balding. Can dance a little") and for that matter bloggers who disappear even faster than they show up.

But the idea that Justices routinely shock and are altogether unpredictable is a myth based on careless (or non-existent) vetting and on the unpredictability of what issues will come before the Court in twenty or thirty years. In reality, we know that those who enter the Court with clear ideological backgrounds tend to stick to them.

Scalia, Thomas, Roberts, Alito - despite some occasional posturing and the odd surprising position, we knew what we were getting. Breyer had made his mark as a toady to the liberal vision of an Administrative State long before he got on the court. No surprise there. Ginsburg is what she's always been. It's those without strong prior positions (or who are sloppily vetted) that tend to be surprises. Stevens? Blackmun? Souter? Kennedy? O'Connor? There were some assumptions, but nobody really knew what they were getting.

Sotomayor? She was never the choice of the party's left wing. She had a great story and a moderate record. Despite the rantings of the right (and are you really gonna trust the views of the birthers on anything?), she was an easy sell to the Senate.

Still, until she's been ensconced on the high court for a few years, there's room for hope (or fear) that she'll actually be what the right claims. Or that she won't.

SOTOMAYOR THROUGH THE LOOKING GLASS

We know that the judge (and certainly the Justice) is not merely a legal umpire, calling metaphorical balls and strikes. There are, whether still-Judge Sotomayor (or now-Chief-Justice Roberts wants to admit it or not, ambiguous rules; there are times when choices must be made among competing rules, and there are times when lacunae in the rules must be filled. And, of course, there is always the matter of whether prior rulings were correct, and what to do about them if they were not. Justices do those things all the time; judges do them more than you might imagine.

While she grudgingly agreed that such things might, perhaps, occassionally happen, Sotomayor basically told the Senate Committee that it's never a court (or judge or justice) making law because the definition of making law doesn't apply to what courts, judges and justices do. Well, what if congress then formall enacts just that rule? Congress will have made law. The court will merely have interpreted. The act is the same, but the actor, controls the name we give to the activity.

I professed English, taught literature and writing to college students for fifteen years before I went to law school. Then and since (and before, but that's a quibble) I've spent more hours than I care to count considering the power and importance of language, of the word, logos.

And God said, Let there be light: and there was light. And God saw the light, that it was good: and God divided the light from the darkness. And God called the light Day, and the darkness he called Night. And the evening and the morning were the first day.

Speak the name and call forth the thing. Name it, and it is. No small thing this. Words matter.

To appellate lawyers and judges (and justices) words really are everything. We don't have live testimony, we have cold transcripts. We don't have (at least not commonly) the power point presentations and videos and audio tapes. When they matter, they commonly have to be transcribed, drawn down to their base essence as words. We don't have witnesses who fidget and look down and mumble and look evasive or forceful or indifferent. The scientist's lab coat is as purely a thing of the imagination in the court of appeals as is the police officer's uniform.

What we have is words and voice.

When I taught, I realized that teaching is performance. There are many ways to do it well (and, of course, to do it badly), but it's all performance. So is litigation. When I stand up in the courtroom - to object, to make an argument, to ask a question or to answer one - it is my stage.

The judges want to direct, of course. They can interrupt me or shut me down. At a motion hearing or in an appellate court (and also, but less readily, at trial) they can tell me to change gears, to shift topics. It's my job not to let them control things to the point where I don't get to pursue the script I'm interested in writing.

I control the stage through inflection, volume, tempo, gesture, appearance, force of personality, presence. But mostly through the words I choose. It's the poetry of prose, something more than the prose Jourdain was so delighted to learn he had been speaking all his life in Moliere's Le Bourgeois gentilhomme. The argument must be sound, the references to the law and the record precise and accurate, but like the classroom lecture, if the jury or the judge doesn't pay attention, I gain nothing. I must convince not merely through logical argument (as the courts, and law schools) would like us to believe, but through the power of how that logical argument is presented.

The judge/justice who writes an opinion need not convince. Explanation is required, but not more. It need not be convincing, or (and many who wear the robe are probably grateful for this part) even coherent. The judicial command isn't theatrical, isn't rhetorical, isn't logical (though judges and justices may be some or all of those things, as may their opinions). It's a creature solely of power.

I argue. They decide.

Their word counts because of the position they hold. Justice Jackson, concurring in Brown v. Allen, explained

We are not final because we are infallible, but we are infallible only because we are final.

The story goes that Justice Brennan would, to each of his new law clerks, hold up his hand and direct their attention to it. Then he would explain the Rule of Five. "Five votes can do anything around here." If he could round up four additional votes, he could decide the case. That simple, really.

I can do the same thing with a majority of a court. But I don't start with my own vote. You see, the word is powerful and its mere utterance calls the thing into being only when the speaker has that godlike power.

There's a fiction of fungibility, that it shouldn't matter who the judge is because, well, because. When they put on the robe, they're interchangeable. In some sense, sometimes, maybe. But ultimately it matters. A lot.

Judge Sotomayor will, barring catastrophe, become Justice Sotomayor in the very near future. Her words have been neither eloquent nor honest. Frankly, they've often not even been coherent. They didn't have to be, which shows the power of sheer power. As used, it's straight out of Through the Looking Glass.

`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'

And so, as Kurt Vonnegut would have it, it goes.

THE HEARINGS YET AGAIN

So now they're blathering again. They're all saying what you knew they would, of course. (Were there any doubt, they've all issued statements explaining how they would vote.)

Still, you do wish someone would break ranks and say something unexpected. But of course the exercise is designed to be tedious and, ultimately, meaningless. That said, it's probably worth saying one more time that the job of justice is more complex than either Judge Sotomayor (she ain't a justice yet) or any of the senators were prepared to acknowledge.

In that spirit, it's worth reading this column by Burt Neuborne, "Judging Is Both Robotic and Discretionary." He writes:

Surely, it would have been a good idea to probe how Justice Sotomayor would approach a case for which clear guidance does not exist. But no senator wanted to go there.

Neither did she.

As I'm typing this, Senator Spector is explaining how wonderfully these hearings educate the public. That's so obviously false it's hardly worth mentioning. But it's a damn shame.

No cause for optimism

You watch the hearings hoping for a hint that you're wrong.

Maybe, just maybe, Judge Sotomayor really does believe that the Constitution can be read expansively even if it's immutable. Maybe, just maybe, she believes that there is some possibility that her life experiences provide more than a commitment to gather facts before figuring out which law applies to them. Maybe, just maybe, she can recognize that it's sometimes necessary to figure out what the right question is in order to determine which precedent to apply.

Maybe she's not the mechanistic technocrat she claimed to be.

And maybe she really does believe that we have an inclusive Constitution designed to protect the people from government and to ensure the protection of civil rights and civil liberties.

But you sure couldn't tell it from the hearings. And you can't tell it from her opinions. So where do we look?

Do we join what Jeff Sessions seems to think and believe that a couple of random comments in her speeches reveal her true judicial philosophy which she's been hiding and refusing to follow for all her years as a prosecutor and a judge? That is, do we imagine that she's created a record as a conservative for decades in the hope that she'd someday get to the Supreme Court and become a raging radical? Alas, nothing suggests that she's either that wily or that stupid.

She was nominated by a President who's apparently willing to endorse indefinite detention for the prisoners at Gitmo, who thinks the Supreme Court got it wrong when it said you can't execute people who didn't commit homicide, and who despite pledging to end Don't Ask, Don't Tell, has not done so and filed a brief (available here) urging the Supreme Court to refuse to consider whether the rule denies the constitutional rights of gays, lesbians, and bisexuals (story here). Despite considerable huffing and puffing by the Limbaughs and O'Reillys, Obama has not shown himself to be a radical, not even a full-throated liberal. He's certainly given no hint that he's a committed civil libertarian. So why would we expect that he'd nominate for SCOTUS a judge who's more open to rights and liberties than he?

We might have expected him to nominate one who's a bit less of a technocrat than Sotomayor portrays herself. We might have expected him to nominate one who actually does believe that there are some small number of cases where recognizing the human dimension of the harm the government can cause matters. (After all, he said that was what he was doing.)

And maybe, just maybe.

But there's sure no hint of it.

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.

ODDS & ENDS

I'm back from several days at a death penalty defense seminar and the preparation of a major brief on Ohio's sex offender law. Much has happened, and since I can't write at full length about everything, it's time for another episode of odds and ends.

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This morning, at 10 a.m., the State of Ohio intends and expects to put John Fautenberry to death. They'll call it an execution, which is correct. It's also correct to call it an aggravated murder. In any event, it's almost surely going to happen.

They'll kill him with a combination of drugs that, according to the only judge to rule on the matter, violates his right - established by the Ohio legislature - to a painless death. (Judge's opinion here.) They'll do the same thing to Marvallous Keene on July 21. They've got plans for seven more, one a month, through February. You can expect more in March and April.

It's almost certain that one or more of the scheduled killings won't happen. Either a court will step in at some point or the Governor will grant someone clemency. (Hey, it could happen.) But the numbers are daunting. Ohio has already killed more people than any other state outside the South, and it seems determined to pick up the pace.

For what little it's worth, there's a certain irony in the Keene execution. As it violates a court order that Ohio stop killing with three drugs and switch to a single, massive, dose of barbiturate, Keene's execution will violate a court order, violate Keene's constitutional rights, and be (it now appears) the one thousandth execution by lethal injection in the United States.

Kinda makes you proud to be a Buckeye. Or not.

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As a reminder of a particular sort of horror in criminal justice, last week Ronald Kitchen and Marvin Reeves were freed by the State of Illinois. They each served more than 20 years for the killing of two women and three children that the state now concedes they don't have enough evidence to justify a trial. (Story here.) By the calculation of the Death Penalty Information Center they are the 134th and 135th exonerations from death row since 1973 (press release here).

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Balls and strikes and Sonya Sotomayor.

Confirmation hearings begin. The big question this year seems, for a change, not to be whether Roe v. Wade is the law of the land that deserves some degree of respect simply because it was decided and is a major front in the culture war. Rather, this year the question is whether justicing is a purely mechanical act of looking at the Constitution and the issue in question and saying "Yea" or "Nay." The Republicans insist it is, and that any contrary perspective is entirely out of the mainstream of American thought, as we can tell because if 5 of the 9 current Supreme Court Justices say so, then the other 4 are entirely misguided.

It's a silly claim, of course, and nearly everyone making it surely understands that. But it's not without some rhetorical power when stated with declaratory force and without apparent irony.

What it most reminds me of is a problem with the Ohio Constituion. The Supreme Court of Ohio routinely tells us that the Ohio Constitution provides important protections for Ohioans.

The Ohio Constitution is a document of independent force. In the areas of individual rights and civil liberties, the United States Constitution, where applicable to the states, provides a floor below which state court decisions may not fall. As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups.

But when it comes right down to it, maybe not so much.

Here's an example of how it works. In State v. Robinette (1995), the Ohio Supreme Court held that both the federal and Ohio Constitutions require that when the purpose of a traffic stop is completed, police may not continue questioning the driver they stopped without first informing the driver that he is free to leave. The state appealed that decision to the United States Supreme Court which reversed it. In Ohio v. Robinette (1996) the Court said that whatever the Ohio Constitution might require, the Fourth Amendment required no such thing.

Back the case went to the Ohio Supreme Court which said (1997), though not in these words, "Gosh, we must have misunderstood the Ohio Constitution. Since we wrongly figured the U.S. Constitution required cops to tell people they were free to leave, we must have been wrong when we figured that the Ohio Constitution required it, too. Thanks to the U.S. Supremes for correcting our understanding of our document."

The Ohio Constitution, no less than the U.S. Constitution, means at any given moment what a majority of its high court justices think it does. Figuring out what that should be is, as I have said before (here, for instance), a whole lot more complicated (maybe not harder, but more complicated) than just observing whether a pitched ball was in the strike zone at any point.

All of which is essentially a digression from what I want to say which is that Sotomayor demonstrated a mastery of the basic rule of these hearings: Listen politely while the Senators pontificate and then say something so profoundly pedestrian that nobody can disagree with you although it's entirely content free. In this case, she said, in her opening statement:

Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.

In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our justice system. My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

Can anybody possibly think that's wrong?

Decide cases with faithful adherence to the law? That really is what every judge endorses as the way to do the job.

Understand the positions and arguments before you? Does anybody, anywhere, think judges should attempt to misunderstand them?

I'm far from the first person to compare Senate confirmation hearings with kabuki theater, but the analogy is apt. And since we know in advance pretty much all we will learn: She has a compelling life story which helps her understand the positions of the parties before her and helps her understand the real world consequences of her decisions, but which is wholly irrelevant to the decisions she makes - as are their real world consequences.

Well, why do we actually bother? Are we hoping that there will be another Robert Bork who actually had a judicial philosophy and was willing to discuss it and its consequences? Do we imagine that an Anita Hill will step forth and rivet us to the television with sordid personal accusations? Might we not let the Senators make their speeches in private without media coverage? Oh, yeah. That's why we have the hearings.

They really do present an opportunity to educate the American people on our judicial system. And they really do ignore that opportunity.

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Here's an example of why judging isn't just calling balls and strikes.

His name is Troy Davis. Maybe he's innocent of the crime for which the State of Georgia desperately wants to kill him. Certainly, the evidence of his guilt, the evidence that got him on death row, has pretty much evaporated. Most of the witnesses against him have recanted their testimony. Another person has apparently confessed to the crime.

Maybe he did it, but tried today, by competent attorneys who know what we know now, he would almost surely be found not guilty. At the least, there are serious concerns.

His case is before the Supreme Court now. They granted a stay of his execution a couple of months ago while they decided whether to hear the case. It's a decision they didn't make before their summer recess, so Davis gets to live until at least the fall.

Oh, the question: Does it matter if he's innocent? Specifically, is the Constitution offended by the execution of a factually innocent person. Oddly, the Court has never said. As I've noted before, Justice Scalia is clear (here) that he believes there to be no constitutional impediment to executing "an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate."

It's true that the Fifth Amendment says that nobody can be deprived of life without "due process of law." But is it a deprivation of that process to kill the innocent? When do we become sufficiently offended?

It ain't just balls and strikes folks.

SOTOMAYOR AND INNOCENCE

I've written about the importance of access to post-conviction DNA testing and about District Attorney's Office for the Third Judicial District v. Osborne, that's the case in which SCOTUS decided last week that people who have been convicted of crimes have no constitutional right to DNA testing that might prove their innocence. And I've certainly written about Judge Sotmayor and the reasons I think she looks like a serious net loss for the criminal defense bar (and maybe others) assuming she is confirmed as an Associate Justice. What I haven't done is to address those things together.

I didn't do it when I read this moving story in the Times about Jeffrey Deskovic, an innocent man who spent 16 years in prison for a rape murder committed by another man. Soo a number of those years were because Judge Sotomayor (as part of a panel) denied him the right to DNA testing - testing he eventually got and which proved his innocence - because he filed some papers 4 days late at the direction of a court clerk.

But thanks to a wonderful post at Grits for Breakfast, I've now read Deskovic's own take on his story and on Sotomayor over at Politico, and it's devastating.

Here's the bottom line:

I would like an opportunity to testify at Sotomayor’s confirmation hearings to let the senators — and the country — know that we need a Supreme Court justice who understands the problem of wrongful convictions and is ready to correct them where the facts deem it necessary. Procedure should never be used as an excuse to override justice. The state must not be permitted to take away an individual’s liberty and later argue that his or her actual innocence is no longer relevant. Truth-seeking is central to our understanding of justice.

In my case, Judge Sotomayor did not demonstrate that understanding. If that is her idea of “empathy,” a trait that Obama sought in his appointee, then God help us all, especially those who are wrongfully convicted and possibly sentenced to death. Innocence can never be ruled as out of order in court.

And that, of course, takes us back to Osborne, back to the question of a right to the tools needed to prove innocence.

The Court has never said that it's unconstitutional to execute (let alone convict) the innocent. At least a couple of members of the court are on record as saying that it's not. But on what human scale must they (and prosecutors and lower courts, for that matter) live to think that it's OK, on any basis, to prevent people from trying to prove that the government made a mistake?

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Making DNA testing theoretically available is only part of the battle, of course. Related topics I haven't yet discussed are the problems of lost or destroyed DNA-bearing material so that there's nothing to test and the nightmare world of those who are cleared by DNA but who still don't get the vindication - and in at least a handful of cases, even the release from custody - they deserve. More to come in those injustice files.

SOTOMAYOR FOR THE PROSECUTION

I'm starting to feel like a scratched record, playing the same note over and over again. (Yeah, I know everyone today talks about Groundhog Day, but I'm old fashioned that way.) Still, the more I learn about Judge Sotomayor the more I'm convinced that she's going to be exactly who we don't want sitting on the Supreme Court.

OK, she's got a great personal story (detailed and glorified by the White House here). So does Clarence Thomas. So do lots of people. Doesn't make them the right folks to decide Constitutional questions.

She has indicated over the years a personal commitment to the advancement of Latinos, women, perhaps other historically disadvantaged and discriminated against groups. Her politics are, one assumes, generally centrist/left, which is likely what we ought to have expected from a President who, despite the claims of Rush and Newt and Mitch McConnell, and regardless of what his personal preferences might be, is for the most part (yes, you have to ignore the takeover of the auto industry) proving to be resolutely moderate in his approach to governance.

But Felix Frankfurter was clearly a liberal while a professor at Harvard yet disappointed Roosevelt (and other liberals) as a generally conservative Justice. Politics don't tell the whole story any more than do life experiences.

The thing is, there's nothing much stealth about Judge Sotomayor. She may never have ruled on abortion or the constitutionality of the death penalty or gay rights, but she's written hundreds of judicial opinions, given dozens of speeches, taken public stands over the decades on a variety of issues. The vast majority of that is referenced, one way or another, in the 172 page questionnaire and attachments she presented to the Senate Judiciary Committee. If we parse that collection carefully, we can get a pretty good idea of just what sort of justice she's likely to be.

Want a more humanized version? See this story from yesterday's NY Times about a case where she denied habeas relief under AEDPA to an innocent man doing time for murder.

Or you can just look at what was said at a press conference yesterday morning (here) to announce that eight law enforcement agencies were endorsing her for the Court. Surrounded by nine police chiefs, Joe Biden explained what sort of a justice she'd be from their point of view.

So you all are on the front lines. But as you do your job, know that Judge Sotomayor has your back as well.

Form over function. Law enforcement over morality. Empathy only for police and prosecutors.

THE DEATH PENALTY MEMO

At last we have the 1981 memorandum that then-private-citizen Sotomayor signed off on as a member of a task force recommending that the Board of Directors of the Puerto Rican Legal Defense and Education Fund oppose restoration of the death penalty and the Governor to veto a restoration bill.  Despite the expected apoplexy among the pro-execution crowd (see, e.g., here), it's really quite a mild document.

It does not say, or even suggest, that the death penalty is unconstitutional.  Instead, the memorandum says the death penalty is bad policy.

• It's widely opposed by "respectable" organizations and mainstream religious groups.
• It's final with the risks of uncorrectable error that entails.
• It's not been shown by recent (as of 1981) studies to be a deterrent, and it isn't a panacea for the problems of crime and violence.
  
• It's "associated with" racism, as seen by the disproportion of blacks on death row.
• It's at odds with the Judeo-Christian tradition and with the values of the rest of the world.
• It's teaches a lesson of violence.
• It's inhumane.
• It takes too long, and there are better ways to deal with crime.

Does now-Judge Sotomayor still believe those things?  I have no idea.

We have learned since 1981 that the racial component of the death penalty is primarily reflected in the race of the victim rather than the race of the defendant.  And there are recent studies, although they have all been discredited, that tend to show that executions - even of the innocent - have some deterrent effect on murderers.  But overall what the memorandum said remains accurate.  The death penalty was and is bad policy.

Still, if you're looking for some serious indication that a Justice Sotomayor would echo Justices Brennan, Marshall, ultimately Blackmun, and perhaps now Stevens in finding that the death penalty is unconstitutional, you sure won't find it in that memorandum.  Or much of anywhere else.

Shame.

ODDS & ENDS

Much as I try, there's just too much out there for me to carry on at length about everything that catches my eye. So here's a bits and pieces collection from the last few days.

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Credit Doug Berman over at Sentencing Law and Policy for finding this article in the Wall
Street Journal on how Sonia Sotomayor's "Criminal Rulings Tilt to the Right of Souter's." That won't be a surprise to anyone who's been reading and believing what I've written about her here and here and here. As the Journal notes,

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.

Maybe that's why. Maybe it's tied into that background of struggle and bootstraps that makes her so (what's the word? Oh, yeah) empathetic. However she got there, She

"has contributed greatly to law enforcement in New York" as a judge, said Leroy Frazer Jr., first assistant district attorney in Manhattan and a former colleague of Judge Sotomayor.

A friend likes to point out of judges that "none of them were put there to help us." But, gee, we could have hoped that Obama would have found one who wasn't going to make things worse.

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You thought prison was a growth industry? Maybe so. But you can always cut back on some things. It's tough, maybe to balance the budget of a prison system by buying fewer paper clips. But surely you can save on the really unimportant stuff - like feeding the inmates. At FindLaw, they've posted this AP report about how prison systems around the country (Georgia, Alabama, Tennessee, and our own Ohio are examples they cite) are "slimming down inmate meals." This follows the news (here and here) that in January a Sheriff in Alabama was jailed for serving insufficient food to inmates and pocketing the difference between what the state gave him for food and what he spent. (Alabama law actually allows that.)

Gruel, anyone?

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It almost never happens, but twice in the last week federal courts have granted habeas corpus relief because there just wasn't enough evidence of guilt.

Gerald Brown was convicted of aggravated murder in Franklin County Common Pleas Court for aggravated murder and a variety of other offenses including aggravated robbery, with each count of the indictment accompanied by firearm specifications. (The case was charged as a death penalty case, but the panel that heard it decided on a life sentence.) The federal district court denied all relief in habeas corpus, but the Sixth Circuit said, in Brown v. Konteh, that even with AEDPA deference a couple of the firearm specifications were supported by no evidence whatsoever and granted relief on those. It's hard to see how the partial win will do Brown any good, and that may be (an unspoken) part of the reason the court was willing to grant that limited relief. Still, it isn't every day that you see a habeas court grant relief on the basis that the evidence doesn't support the conviction.

Or maybe it is every day. In 1988, in Ocean County, New Jersey, Paul Kamienski was convicted of murder. Last week, in Kamienski v. Hendricks, the Third Circuit said that even with all the deference to New Jersey courts required by AEDPA, and looking at the facts and drawing inferences most strongly in favor of the prosecution,

no reasonable juror could conclude that the evidence admitted against Kamienski at his trial established that he was guilty of murder or felony murder beyond a reasonable doubt, and the New Jersey courts’ conclusion to the contrary is an unreasonable application of clearly established Supreme Court precedent.

It's an extraordinary decision, not least because it flies in the face of the Heinous Crime Rule. (If the crime is sufficiently heinous, there's no such thing as reversible error.)

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In Chicago, the public defender is out of money for death penalty cases and asking to have death taken off the table in some 60 cases. Stories about this have been circulating for a couple of months (see here, for instance), but it's big news right now.

The problem of underfunding public defense - and especially capital defense - is real and nationwide. I talked about it here, and it will surely come up again because it's not going away anytime soon (say, within our lifetimes). But let's give some praise to the Cook County PD for taking this step. The problem may not be the fault of the courts, but the courts have to do something about it.

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Finally, at least for the moment, The BLT: The Blog of Legal Times reports that

Two former Alaska state representatives who were convicted on corruption charges in the probe that ended the political career of Sen. Ted Stevens should be released from prison because the Justice Department has found information that should have been disclosed to the defense prior to trial, government lawyers announced.

And so, we have more in the extraordinary and continuing saga of the Obama adminstration's Justice Department demonstrating that the Bush administration's Justice Department violated discovery rules right and left in its investigation and prosecution of Republican officials and office holders in Alaska.

EVERYBODY HAS A RIGHT TO BE WRONG

In the early years after I got out of law school, I worked as a law clerk ("staff attorney" is another term for the job) for a federal judge in Texas and then for all the judges in the General Division of the Lucas County Court of Common Pleas in Ohio. In those jobs I did research, gave advice, and drafted opinions which the judges eventually signed (sometimes after editing them, sometimes not). One of the things I learned is that some judges really hate, really really really hate getting reversed.

It always seemed odd to me. A reversal doesn't mean, on its face, that the judge was seriously wrong. It just means that at least two out of three judges slightly higher up the judicial food chain came to a different conclusion. It always seemed odd to me to take it personally since being reversed goes with the territory of being a judge. If you're not prepared to be reversed, don't become a judge. This was the wisdom of Justice Jackson concurring in Brown v. Allen:

Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.

All of this is relevant only because, as this article on Law.com from the National Law Journal points out, Judge Sotomayor is being attacked as stupid or incompetent or hopelessly misguided or something because of the five cases in which she has written opinions that the Supreme Court reviewed, it reversed her three times. That's a 60% reversal rate.

Shocking.

Well, not really. The article also notes that Sotomayor has written 232 opinions as an appellate judge. So another way of counting is to say that she has a reversal rate of 1.29%, which seems pretty low. Or you might note that then-Judge-now-Justice Alito's reversal rate was 100% when he was nominated. Or that the Supreme Court reverses about 75% of the time when it agrees to hear cases. Does all that mean that she's actually ahead of the curve?

Nope. The basic fact is that Justice Jackson was right and none of this means anything.

There are good judges and bad ones. There are a small number of cases where a trial judge's reversal rate is so high that it suggests an unwillingness to follow settled law, though the rate would have to be extraordinarily high really to suggest that. But the reversal rate of an appellate judge by a court of discretionary jurisdiction is, truly, meaningless.

CONFIRMATION HEARINGS

Let's talk about the upcoming Senate hearings on whether Sonia Sotomayor will be confirmed as an Associate Justice of the Supreme Court.

Today's Newswire from law.com, includes this article from the National Law Journal exploring issues members of the Senate Judiciary Committee should, but almost certainly will not, vigorously pursue with Judge Sotomayor during the confirmation hearings. It's a useful reminder that her views (and votes) on the hot button social issues that Senators get points for asking about may well have less day to day consequence than what she'd say about less sexy topics like business regulation, ERISA, criminal procedure, and standing (not a complete list).

We all know how the hearings will go. The Senators from New York will explain that she's the finest person ever to be nominated. A few law professors and fellow judges will weigh in. Then it will be time for the real show. Judge Sotomayor will read a prepared statement in which she explains how honored she is and what a fine and decent judge she'll make and so forth. Then it will be time for the ostensibly serious business.

Cue the kleig lights:

Senator ___________ pontificates for a bit, then asks a complicated, nearly incoherent question, which pared down to its essence is, "Will you overrule Roe v. Wade or declare the death penalty unconstitutional or something?" Sotomayor refuses to answer because someday she might actually have to answer the question as a Justice and therefore it would be improper for the members of the Senate or for the American people to know what she might do before deciding whether she should be allowed to do it. [Note that the Supreme Court has already said that people seeking judicial positions via election have an absolute First Amendment right to answer such questions as long as they don't actually promise how they'll vote. Republican Party of Minnesota v. White, here.]

Democratic Senators ask if she'll apply the law fairly, without allowing any personal views she might have to lead her to make decisions at odds with the Constitution. She agrees to obey the Constitution.

Republican Senators demand that she repudiate any personal views she might have and agree that well-programmed computers will surely be better justices than she could ever be because the Constitution is entirely clear and only a fool could think it actually needs to be interpreted rather than applied. She finesses the answer to that one.

Everyone agrees that courts shouldn't make policy and that wise, old, white millionaires are just as able as poor Latinas to make good decisions.

Sigh.

You know, I care how she'll vote. And I've got my hobby horse issues, too. But if you're looking for the Platonic ideal of a Justice (as opposed, say, to seeking the Justice you'd most like to have voting in any given case), what you want to talk about is judicial philosophy, intepretive methodology, analytical models, jurisprudence. And, of course, wisdom.

Don't hold your breath.

SOTOMAYOR AND THE DEATH PENALTY

Despite how it's starting to look, it's not my intention to be all Sotomayor all the time. But since another of my obsessions is the death penalty, and since Mark Sherman at AP (with thanks to Doug Berman over at the Sentencing Law and Policy blog for pointing it out, here), has actually now provided a bit of information, I'm at it again. This is how Sherman's story begins:

Sonia Sotomayor has never confronted the contentious issue of the death penalty as a federal judge, but she was a director of a Puerto Rican advocacy group that opposed capital punishment in the 1980s.

Sotomayor was part of a three-person committee at the Puerto Rican Legal Defense and Education Fund that recommended opposing a legislative proposal to re-institute the death penalty in New York. The group adopted the panel's position in 1981, explaining in a letter to then-Gov. Hugh Carey that "capital punishment represents ongoing racism within our society."

An examination of the group's records did not turn up any death penalty-related writings directly attributable to Sotomayor. And since becoming a federal judge in 1992, Sotomayor has imposed life sentences on drug dealers and rejected criminal defendants' claims that they were subjected to unconstitutional searches, but she hasn't dealt with the death penalty.

I've been searching the web some and haven't come across anything else she's said on the subject over the years. So maybe that's it. And it's probably not enough to be much of a guide.

First, it's been decades since she signed off on the statement, and views change. Second, what she believes as policy is not necessarily how she'd vote as Justice (despite the fears of some on the right and, increasingly, on the left). Third, the Court hasn't had an up or down vote on the death penalty for 33 years, since the 1976 decisions in Gregg v. Georgia and there's no particular reason to think that there'll be one in the next 33. There may be some exclusion cases akin to Atkins v. Virginia or Roper v. Simmons, likely starting with the seriously mentally ill, but they deal with details, not the broad questions of whether the death penalty as such is or is not permitted by the Constitution.

What's far more important is her treatment of the federal courts as protectors of federal rights in habeas corpus cases, a treatment that will likely manifest itself in the application of the Antiterrorism and Effective Death Penalty Act of 1976 (AEDPA) (complete text here for anyone insane enough to want to read it). Thanks to Kent Scheidegger of the Criminal Justice Legal Foundation, we have some useful information.

Scheidegger did a search for all opinions she wrote that include the acronym "AEDPA" and then analyzed and summarized the results (here). The short of it: She's a dead bang loser for the defense. The one exception is a pre-AEDPA Batson case, Galarza v. Keane, where she remanded for the District Court either to find more facts or to grant a conditional writ and allow the state court to find more.

We've seen that Sotomayor is deferential to the police. And from what I can tell, she's deferential to the state courts in habeas cases. From the signs, at least, it seems we of the criminal and capital defense bar are not going to be happy.