There has been substantial talk regarding the nomination of Justice Sonia Sotomayor and specifically her holding in Ricci that was recently overturned by the United States Supreme Court. Obviously, this case will be a centerpiece of the confirmation debate with conservatives painting her from everything from a racist, an affirmative action choice, lacking judicial independence or anything else illogical one can think of. While issues of abortion, affirmative action, judicial independence and most importantly stare decisis. In reading a recent decision made by the Court with the majority opinion authored by Justice Scalia, I think the issue of stare decisis must be at the forefront of this confirmation process and why her "experience" in person and more importantly professional life should be viewed as a welcome asset to the Court.
Last week, the Court held 5-4 in Melendez-Diaz v. Massachusetts No. 07-591 that lab analysts must be subject to the same cross examination requirements as traditional witnesses. As Justice Kennedy noted in his dissent this essentially has upended a 90 year rule held by the Court. (It should be noted that with was not the "traditional" 5-4 decision with the majority being Scalia, Thomas, Souter, Ginsberg and Stevens. Minority being Kennedy, Roberts, Alito and Breyer.) In my opinion, as a law enforcement officer and a student, Justice Kennedy really took Scalia to task in regards to how this decision will affect the criminal justice system, further burdening it unnecessarily. While I will not go into how this case will hinder many prosecutions, specifically DWI cases I will move on to why Justice Sotomayor may provide an insight not available to the other justices with her "experience."
After graduating from Yale Law School, she became an Assistant District Attorney where she spent five years in the Manhattan office trying criminal cases. She was described as a "fearless and effective prosecutor" by Robert Morgenthau who picked her for the position. http://bit.ly/... I can attest that working within the criminal justice system gives you a much different view on the system than someone who has not and can influence your views and beliefs significantly. When she is confirmed, Justice Sotomayor will be the only justice with criminal prosecution experience and thus be able provide an insight into these cases, specifically in questioning attorneys during these cases. The Melendez-Diaz case is probably the clearest example in how her "experience" can benefit the Court.
She has been viewed by some as a "bully on the bench" with a tendency to dominate questioning http://bit.ly/... although some believe is better than sitting silently without any inquiring. Currently, Justice Scalia is the most prominent questioner on the Court and from transcripts in this case he was essentially advocating for the petitioners (Melendez-Diaz) during oral arguments. If statements about Justice Sotomayor are correct in that she is a direct questioner I think this will provide further debate and discussion against Scalia, a conservative and "originalist" justice through the Court's term. Unlike Justice Scalia, Sotomayor has dealt with cases involving facts very similar and with the case law that until last week had been settled precedent for the last 90 years. In addition to this, her experience could have pointedly countered the assertion made by Scalia that this new rule is already in effect throughout the country which it is not. (That assertion is extremely narrow by failing to note the burden placed on state Department of Forensic Science machine calibrators in DWI cases who are now subject to subpoena and cross examination on every machine they have calibrated throughout Virginia. His definition of analyst does not prevent defense attorney from subpoenaing machine calibrators on every case they intend to try. In turn, the failure by the Commonwealth to produce the machine calibrators will result in cases being dismissed or nolle prosequi. Justice Scalia only noted drug cases which wrongly assumed are the only cases involving "forensic analysis") While it is hard to say how Justice Sotomayor would have ruled on this particular case it is hard to argue against the assertion that her five years of experience as an Assistant District Attorney would not have provided valuable insight to the justices during oral arguments and in making their ruling in this case.
I believe that issues relating to criminal justice and the sixth amendment will be put on the back burner during this confirmation process, although it is an issue that should not be ignored. While issues of abortion, affirmative action, civil rights are important issues I feel that criminal matters should be near the top for the shear matter that some of our country's most important cases have come from that particular area. (Miranda, Mapp, Terry, Hamdan to name a VERY select few) But more importantly, one of the first cases Justice Sotomayor will hear and decide on is a case extremely similar to Melendez-Diaz (and involving Virginia) in Briscoe, et al., v. Virginia which involves another Confrontation Clause case that involves a certificate prepared by a forensic analyst. I don't think I have to remind anyone how one justice can influence the outcome of a case and previously held case law. (See the Stenberg cases from 2000 and 2007)