A story in yesterday's WSJ headlined "Nominee's Criminal Rulings Tilt to Right of Souter" suggested that Judge Sonia Sotomayor could be more "conservative" than Justice Souter on criminal justice issues. While this is certainly possible, and I would not be surprised to see some differences between Sotomayor and Souter on criminal law issues, I am not sure that the primary case relied upon in the WSJ story supports its conclusion.
According to the story,
While Judge Sonia Sotomayor stands in the liberal mainstream on many issues, her record suggests that the Supreme Court nominee could sometimes rule with the top court's conservatives on questions of criminal justice.The White House talking points on Justice Sotomayor also point to this decision as evidence of her "sensible practicality" on criminal justice issues.
The Supreme Court's five conservatives in January held that it was acceptable for prosecutors to use evidence seized by police who mistakenly thought they had a warrant to arrest a suspect.
Justice David Souter dissented, as did the other liberals on the court. But Judge Sotomayor, nominated to succeed Justice Souter, ruled in favor of the police in a similar case 10 years ago. In that case, the judge upheld an arrest and search that never would have happened if police and court officials had kept accurate records. . . .
In the Fourth Amendment case in 1999, Judge Sotomayor ruled against Anthony Santa, who was sentenced to 30 months after officers in Spring Valley, N.Y., arrested him and found 2.95 grams of crack cocaine.
Mr. Santa's lawyer said the arrest and search were improper, because officers were acting on a warrant from a neighboring town that had been canceled two years earlier. The Supreme Court had earlier ruled that such mistakes didn't invalidate evidence if court officials were responsible. The issue of responsibility was in dispute in this case, but Judge Sotomayor's ruling assumed the police had acted appropriately and upheld the sentence.
Does Judge Sotomayor's decision in United States v. Santa support the claim that she would be to Justice Souter's right on criminal law issues? I don't think so. As I read it, Judge Sotomayor's Santa opinion was a straighforward application Arizona v. Evans, a 1995 decision in which the Supreme Court held, 7-2, that the exclusionary rule did not apply to evidence obtained in violation of the Fourth Amendment where the police relied, in good faith, on erroneous information provided by court employees. Justice Souter joined the majority opinion in Evans, and also joined concurring opinions by Justices O'Connor and Breyer, the former of which was explicitly cited by Judge Sotomayor in Santa.
The suggestion that Santa indicates Judge Sotomayor would be to Justice Souter's right comes from Justice Souter's dissent in Herring v. United States, a case decided this past January. [For more on Herring, see Orin's posts here.] In Herring, Justice Souter dissented from the Court's holding that the Evans exception applies when police rely upon erroneous information in a police database. While there are similarities between Herring and Santa, and Justice Souter joined Justice Ginsburg's Herring dissent that echoes her reasons for dissenting in Evans, Justice Souter also joined Justice Breyer's separate dissenting opinion distinguishing Herring from Evans on the ground there are reasons to distinguish police reliance upon police errors and judicial errors in this context. Judge Sotomayor also relied upon this distinction in her Santa opinion, in which she wrote (citing Evans):
where, as here, "court employees were responsible for the erroneous computer record," and "[t]here is no indication [in the record] that the arresting officer[s] w[ere] not acting objectively reasonably when [they] relied upon the police computer record," Evans instructs that "the exclusion of evidence at trial would not sufficiently deter future errors so as to warrant such a severe sanction."Does this mean that replacing Justice Souter with Judge Sotomayor will have no effect on criminal law? Not necessarily. One area where the switch could have a significant effect is criminal sentencing. Justice Souter joined the Court's five-justice majorities in the Apprendi-Booker line of cases holding that judges may not increase criminal sentences based upon facts not found by the jury "beyond a reasonable doubt." These were all 5-4 decisions, but did not split the Court along traditional ideological lines. Rather, the Court split between formalists and pragmatists. In these cases Justice Souter joined Justices Stevens, Scalia, Thomas and Ginsburg (save for part of Booker in which Ginsburg flipped), so if, as a Justice, Sotomayor is more "pragmatic" than Souter on sentincing issues (perhaps due to her time as a trial court judge), it might have a significant effect on this area of the law, but I don't think we should chracterize this as a shift in a more "conservative" or "liberal" direction.
Finally, in looking at how Judge Sotomayor might address criminal justice issues once confirmed to the Court, I also found this tidbit from the WSJ interesting.
Michael Bachner, a New York defense lawyer who has handled trials and appeals before Judge Sotomayor, senses a divide in her criminal jurisprudence. She can be "very tough" on white-collar defendants from privileged backgrounds, but is "more understanding of individuals who grew up in a tougher circumstance."