It now appears that the Obama administration, which once seemed so eager to explicitly press the case for liberal constitutional jurisprudence, is trying to characterize Sonia Sotomayor as a bona fide judicial moderate, if not an outright conservative. Take a look at the administration’s talking points: no more talk of “empathy” is to be found. Rather, they highlight her frequent agreement with her Republican colleagues on the Second Circuit and her “understanding of the appropriate limits of the judicial role.”
What limits, exactly? The talking points mention “respect for criminal convictions and sentences” and “respect for controlling precedent.” Here’s an interesting question for Sotomayor’s confirmation hearings: What does the judge think should happen when these two “respects” collide, when a liberal criminal-justice precedent conflicts with a criminal conviction or sentence? There are some reasons for liberals to be cautious and to press Sotomayor on her views.
Remember that Warren and Burger Court decisions protecting the rights of criminal defendants are, as much as any other decisions, “controlling precedents.” They also, of course, do not “respect” criminal convictions; thus Richard Nixon’s famous warning that the Warren Court was “weakening the peace forces as against the criminal forces.” Miranda v. Arizona was once the law-and-order conservatives’ main enemy, but 2000’s Dickerson decision, authored by no less a judicial conservative than Chief Justice Rehnquist, upheld it. But since the advent of the Roberts Court, the weakening of other protections for criminal defendants has been gathering steam.
One of the main targets for conservative attack has been the exclusionary rule, which bars the use of unconstitutionally obtained evidence. 2006’s Hudson v. Michigan ruled that violation of the “knock-and-announce” requirement did not require the suppression of evidence thereby obtained, and January’s Herring v. United States decreed that evidence gathered thanks to police negligence could also be admitted. Most recently, the Court overturned the 23-year-old precedent of Michigan v. Jackson , which forbade police from interrogating a defendant who has invoked his right to counsel during a court proceeding, even if the defendant later agrees to questioning without his counsel present. An arcane and complicated ruling, no doubt, but one that reflects the Roberts Court’s sympathy for police departments at the expense of indigent and ill-informed defendants.
Now, we really cannot know for certain how Sotomayor would have ruled in these cases; all we can divine from her record is a sense of her general attitude towards certain kinds of cases. There are a couple of disconcerting signs here. Emily Bazelon describes a 2001 case, Jocks v. Tavernier, in which Sotomayor appears to have swung two other judges around to her opinion, which broadly construed the permissible grounds for arrest and overturned a jury verdict in favor of a man who sued an arresting policeman (read the whole article for the details). Speculating on her motivations, Bazelon points out that Sotomayor “went straight from Yale Law School to the Manhattan district attorney’s office in 1979 and tried dozens of criminal cases there over five years.” If we can indulge in the assumption that a lot can be revealed about a lawyer’s ideology by what she chooses to do after law school, this is indeed a plausibly compelling explanation for Sotomayor’s relative sympathy for the arrester compared to the arrestee. (If, on the other hand, Sotomayor had gone straight to the ACLU or one of the legal defense funds that she mentioned in her controversial 2005 comments at Duke, we might assume something very different about her).
Even more troubling is the White House’s apparent belief that Sotomayor not only anticipated the Supreme Court’s ruling in Herring, but that it would be a good thing if she had. Ed Whelan, the Right’s point-man on legal issues, argues that Sotomayor’s ruling in United States v. Santa was about police reliance on errors by court clerks, an issue on which she was bound by Supreme Court precedent, not about police reliance on errors by other policemen, as in Herring. Whelan is right. Given circuit-court judges’ overriding inclination to follow Supreme Court precedent, it is ludicrous to think that Sotomayor would be 10 years ahead of the Supreme Court.
But why is the White House mischaracterizing Santa? (The question sounds ridiculous, but notice the italics.) There seem to be only two possibilities: it is inexplicably trying to build Sotomayor’s conservative cred, or it genuinely thinks Herring was a good decision and wants to associate itself with it. The latter clearly would not bode well for Sotomayor’s disposition of criminal-justice cases, but the former possibility is not terribly reassuring either. It would seem to suggest a political dynamic wherein the views of the four dissenters in Herring, Hudson, and Montejo are deemed too risky, too controversial, too liberal to defend. But they were and are mainstream views, and it would be a shame if Sotomayor’s respect for precedent extended to such recent conservative victories, or if it failed to extend to much older, more liberal decisions protecting criminal defendants. This is the trouble with talking about respect for precedents: the question always arises, Whose precedents do you want to respect?
This post was initially published at BR Footnote, the blog of the Boston Review interns.