Sotomayor, Santa and Souter:

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 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.

The White House talking points on Justice Sotomayor also point to this decision as evidence of her "sensible practicality" on criminal justice issues.

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."

She ruled against Santa? That should be the end of the nomination right there.
6.6.2009 12:32pm
M N Ralph:
Wasn't Sotomayor a federal prosecutor for anumber of years? Based on that alone, I'd expect her to be to the right of Souter on criminal law issues.
6.6.2009 2:17pm
ruuffles (mail) (www):

Wasn't Sotomayor a federal prosecutor for anumber of years? Based on that alone, I'd expect her to be to the right of Souter on criminal law issues.

Earl Warren was both a DA and AG of California. His experience let him see how stacked the deck was.
6.6.2009 2:19pm
M N Ralph:

Earl Warren was both a DA and AG of California. His experience let him see how stacked the deck was.

No doubt you can be or have been a prosecutor and still come down strongly on the civil liberties side of criminal law issues. In my experience, it's unusual however. Of course, Sotomayor has been on the bench for a while. So, I'd think the best evidence for her leanings would be her opinions, which I haven't read. So, my comment was admittedly speculation.
6.6.2009 4:43pm
RowerinVa (mail):
Etymologically, something interesting is going on here. "Liberal mainstream?"

The term implies that there isn't just one "mainstream" -- perhaps there is a far left one, a moderate one, and a far right one. Fascinating. Parsing groups finely enough, you could make everyone into "mainstream." The term "mainstream" thus loses any real meaning.

It's also interesting that it's the WSJ using this term. Then again, the WSJ's line reporters are quite liberal on most issues, and this was a reporter's story, not an editorial.

My brief searching shows that "liberal mainstream" is a much more common term in the MSM than in "conservative mainstream"; I suspect that's further evidence of liberal reporting bias.
6.6.2009 9:16pm
Dave N (mail):
If we are to believe Wikipedia, David Souter served as a prosecutor in the New Hampshire Attorney General's office.

Heck, the same article even claims that Souter was known for "tough sentencing" when he was a trial level judge.
6.6.2009 9:59pm
Proud to be a liberal :
Judge Sotomayer worked in the Manhattan District Attorney's office, so she was not a federal prosecutor.
6.7.2009 1:48am
The X factor for the Apprendi-Ring-Blakely-Booker cases is what does Roberts think? O'Connor and Rehnquist hated them; we know Alito hates them; but it's been harder to pin down Roberts. If you read some of Sotomayor's opinions (including her, well, interesting opinion in the Second Circuit's big en banc Cavera decision) you get the feeling that she doesn't like all this new discretion (nevermind the fact that people are getting decades tacked on to sentences on the basis of facts found by judges by a mere preponderance).

But Roberts is sort of enigmatic. He has generally joined the majority, including California v Cunningham striking down California's scheme, as well as the Booker-application cases like Gall, Rita, and Kimbrough. But then! See his dissent in Spears v. U.S., where he was joined by Alito.

And then the reverse again. The Court ruled to limit the Apprendi-Blakely cases in the context of consecutive or concurrent sentences in Oregon v. Ice, and Scalia wrote an extremely formalist and hard-line dissent that the Apprendi-Blakely rule should control (great dissent, IMO), joined by Roberts.

So I don't know what he thinks about these cases. I can't find an opinion where he's written and explicated them. But I think he holds the cards. Imagine if the Court upheld the Blakely rule (or expanded it, as Scalia and Thomas want), with the Chief's vote over a dissent by Sotomayor?
6.7.2009 9:40am

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