While Judge Sonia Sotomayor is certainly qualified to be a Supreme Court Justice, she is far from the best choice and yet another disappointing decision from Obama made to placate Republicans. Why? She's far more conservative than the Justice she will be replacing. There's a good chance she's anti-abortion and she's clearly shown that as a former prosecutor she is hostile to criminal defendants.
Sonia Sotomayor is a Catholic, former prosecutor who was initially appointed to the federal bench by Daddy Bush. She has no stated opinion on abortion and as she is a Catholic, this makes me very nervous. I have to wonder if she'd be willing to spend all of eternity burning in hell to protect women's right to procure a legal abortion (or as the religious folk say, "to murder a baby"). Yes, I realize and concede that all Catholics are not anti-abortion. However, all else being equal there should be a presumption that a Catholic is against abortion. [EDIT: there are many polls that show people who identify themselves as Catholics are more likely than not to oppose abortion. here is just one that shows 59% of Catholics oppose abortion. I am not making an anti-Catholic statement here, I am simply saying something consistent with every bit of statistics I've seen - Catholics are more likely than not pro-life.] If she were to come out and say she is pro-choice then that is all I'd have to hear to rebut the aforementioned presumption. Yes, at today's hearing she said that "Roe v. Wade is settled law" but that's an utterly meaningless, normative statement of the law. It's the same thing Roberts and Alito said during their confirmations - "it's settled law." That says nothing about whether they think it should remain the law, whether they agree with the way it was decided,whether they think abortion should remain legal, or whether, given the power to change that settled law, they would do so with a smile and a big wink to Jesus. I mean, even the most die-hard racist would agree that integration is "settled law" - that doesn't mean they don't want to go back to segregation or wouldn't vote to overturn Brown v. Board of Education if they were given a seat on the Supreme Court
In criminal appeals, Sotomayor sides with the prosecution about 95% of the time - as a former prosecutor who has never practiced criminal defense, she is clearly biased against criminal defendants. In my experience as a lawyer, all judges who started off in the prosecutor's office and never spent time practicing criminal defense are wholly unable to put aside their victim-hugging, "law and order at all costs" mentality. The prosecution gets a huge advantage, because the judge used to play on that team. I have absolutely zero trust in Sotomayor to protect our rapidly diminishing rights under the Fourth, Fifth, Sixth, and Eight Amendments to the Bill of Rights. Don't we have enough judges who are former prosecutors? Can't we get just one judge who used to be a criminal defense attorney? I have no objection to a judge who practiced both prosecution and defense. But it's gotten to the point where having spent time as a prosecutor is a prerequisite for being qualified to be a judge.
As a pragmatist, I understand why elected state judges can't rule in favor of criminal defendants, as they will get called "soft on crime" come their next election and lose out to someone more willing to violate the rights of defendants. But federal judges all have life tenure and don't have to worry about elections. That's the whole purpose of life tenure under Article III of the Constitution. We need a judge who can rule against the prosecution in a criminal case with horrible facts and not worry about people saying that she "sided with the child rapist" and the usual anti-defendant nonsense. Unfortunately, I do not believe that Sotomayor can or would be willing to side with criminal defendants that come before her.
Can someone find me just ONE appellate opinion where Judge Sotomayor dissented from a pro-prosecution majority opinion written by the other two judges on her 3-judge panel and sided with the criminal defendant? I have looked and I cannot find so much as one case where she disagreed with the majority to stand up for the rights of a criminal defendant. None. Zero.
Sotomayor's discussion of what she learned when prosecuting the "Tarzan Bandit" gives me no doubt that she is still a prosecutor at heart, and will always be biased against the defendant in criminal cases. To be sure, the Obama Administration's talking points about Sotomayor include such things as "respect for criminal convictions and sentences" which is unequivocal code for "sides with the government in criminal cases." Criminal convictions and sentences do not deserve any "respect" when they are erroneous. Unfortunately, Sotomayor is clearly no Brennan or Marshall and will not go out of her way to expand the rights of Americans accused of crimes. The Exclusionary Rule is in serious jeopardy and I'm not the only one to worry that Sotomayor has no interest in preserving it (see this article, for example).
So, other than to suck up to women and Hispanics, why was Sotomayor nominated by the purportedly liberal President for whom I voted? While she is not as conservative as Thomas, Roberts or Alito, I expect she'll be siding with Kennedy for the most part rather than the liberal wing of the court. Expect 6-3 decisions that would otherwise be 5-4 decisions under the current Court. Considering the direction of the Supreme Court over the past 8 years, I want - and we need - the Court's vacant seat to be filled by the most liberal judge that Obama can find. Whoever that may be, it is certainly not Sonia Sotomayor. As such, I can not approve of her SCOTUS nomination. Unfortunately it's going to happen. Yet another disappointment by Obama, for whom I had such high hopes.
As a side note, the Republicans know all this, so why are they fighting her nomination? Two simple reasons. First, their base does not know this and demands that they fight it, so they have to go along if only for fundraising purposes. Second, the Republicans have figured out that as long as they vociferously oppose an action by Obama, 98% of Democrats will blindly support Obama's decision without looking into it for themselves. This is most unfortunate, and the Republicans have been milking this fact all they can. Meanwhile our troops are still dying in Iraq, Guantanamo is still holding suspects indefinitely, we're still doing extraordinary renditions, no Bush administration officials have been investigated, let alone prosecuted, the President is still abusing claims of executive privilege, and corporate welfare and bailouts are as shameful as ever. But the Republicans complain - so Obama must be doing the right thing! Never mind the facts. Now add the Sotomayor nomination to that ever-growing list of Obama disappointments.