Sotomayor’s record worth a look

Many U.S. Supreme Court observers believe that the nomination of Judge Sonia Sotomayor will do little to alter the court’s balance of power. A review of her career and her decisions as an appellate judge may indicate otherwise.

A recent decision by the U.S. Supreme Court clearly suggests that having Judge Sotomayor replace retiring Justice David Souter will not bolster the influence of the liberal wing of the court.

In Montejo v. Louisiana, the high court overruled a 1986 Supreme Court decision that required the police to discontinue questioning a defendant once the defendant had been appointed legal counsel.

Montejo was arrested for murder. At his preliminary arraignment he was appointed counsel. After the arraignment, and before he ever met with the attorney, the police asked Montejo if he would take them to retrieve the murder weapon. While en route, Montejo wrote a letter of apology to the murder victim’s widow. The letter of apology was admitted at Montejo’s trial and he was convicted of first degree murder and sentenced to death.

In 1986, the U.S. Supreme Court decided Michigan v. Jackson which required the police to discontinue or avoid interrogation of a criminal defendant once he had an attorney. The Jackson court did not distinguish between requesting an attorney or merely having one appointed.

The Montejo decision, by a 5-4 vote, overruled the Supreme Court’s prior holding in Jackson. Justice Antonin Scalia wrote the majority opinion in Montejo and was joined by Justices Roberts, Thomas, Alito and Kennedy. The four dissenting justices included Stevens, Ginsburg, Breyer and Souter.

Different direction

With Sotomayor to replace Souter there is little likelihood that the conservative majority would move in a different direction. That is assuming that Sotomayor would join with the more liberal minority. Sotomayor is currently a judge on the Second Circuit Court of Appeals. She worked for five years as an assistant district attorney in New York City.

According to a review by McClatchy Newspapers, Sotomayor’s appellate decisions since joining the Second Circuit Court of Appeals indicate that she is anything but soft on crime. The review of Sotomayor’s decisions found that 65 out of 90 criminal-law related decisions favored prosecutors. The McClatchy review further found only one dissenting opinion on behalf of a defendant.

No one is certain how a judge will rule once he or she joins the Supreme Court. Justice Souter was appointed by President George H. W. Bush and consistently voted opposite the conservative block of the court. Could Sotomayor actually make the conservative block of the court stronger on criminal-law related matters?

Last month the Supreme Court agreed to hear two Florida cases in which juvenile offenders have been sentenced to life without the possibility of parole. Neither life sentence was for murder. In 2005, the Supreme Court voted 5 to 4 to abolish the death penalty for juvenile defendants. The court found that the death penalty violated the Eighth Amendment ban on cruel and unusual punishment. The conservative block of Scalia, Thomas, Rehnquist and O’Connor voted against abolishing the death penalty. With the defection of Justice Kennedy, the liberal block of Breyer, Ginsburg, Stevens and Souter prevailed on outlawing the death penalty for juveniles.

Kennedy wrote the majority opinion and signaled that life without parole may also be cruel and unusual punishment. Kennedy wrote, “It is worth noting that the punishment of life imprisonment without the possibility of parole is, itself, a severe sanction, in particular for a young person.”

Sotomayor’s pro-prosecution record on the Second Circuit may be a prelude to voting with the four conservative justices on law and order issues. The first test may come very soon with juvenile life without parole. Even with another defection by Justice Kennedy, the effort to abolish life without parole could fail if, ironically, Sotomayor voted in line with the prosecution as she did 72-percent of time on the Second Circuit.

The addition of Judge Sotomayor to the high court may be more interesting than many court observers believe. Although we do not know how she will vote on “hot-button” issues, at age 54, she has the potential to wield a great deal of influence over the next two decades.

X Matthew T. Mangino is the former district attorney of Lawrence County and a featured columnist for the Pennsylvania Law Weekly. His law blog is at www.mattmangino.com)