Friday, June 5, 2009

Sotomayor--Let's Put the Cards on the Table (Some Common Threads in Her Opinions)

There are some readily identifiable interests that tie Judge Sotomayor's opinions together. Indeed, these interests seem to explain opinions which might otherwise appear somewhat atypical for her, or which are not easily reconcilable with the underlying facts or law.

Let's look at 4 particularly salient ones. When these interests have been involved in a case (and again, we are speaking of the difficult, divided cases in which Sotomayor wrote either the majority or dissenting opinion), they seem to have determined the result she reached.

Protecting children, insuring criminal due process, holding business accountable, and weeding out unequal treatment of minorities. These interests have been very good predictors of the outcome Sotomayor would support in her opinions.

Here they are depicted graphically.

Common Threads in Sotomayor's Opinions
(click to enlarge)

As shown in Graph 1, in the divided cases where the protection of children was somehow involved, Sotomayor always argued in her opinions for the result that promoted that interest. That is, in 5 out of 5 difficult, divided cases where that interest was implicated, she argued for the interpretation of the facts and the law that supported the outcome most favorable to safeguarding the welfare of minors. These cases involved such matters as investigating child pornography, prosecuting sex with minors, strip searching juveniles in detention, and minors suing a charitable institution.

In those cases involving criminal due process--i.e., the fairness of procedures and treatment--she adopted that interpretation of the law and facts favorable to the suspect, accused, or convicted in 80% of her opinions. That represents 12 out of 15 difficult, divided cases.(Actually, these do not include 3 cases involving crimes directed at protecting children. I'll explain why I have excluded them shortly.) These cases involved such matters as search and seizure, the prosecution's burden of proof, sentencing, and deportation based on criminal convictions.

In those cases involving holding business accountable, her opinions argued for being tough on business 90% of the time. That's 9 out of 10 close, divided cases. These cases involved such matters as excise tax and bankruptcy fraud prosecutions, anti-trust, employment discrimination claims, and negligent product design.

Where discrimination against minorities was claimed, she found the claims had merit in all her of opinions. That's 6 out of 6 cases that were difficult enough to divide her colleagues. These cases--oftentimes related to business accountability--involved claims of sex, race and disability discrimination in employment, education, and voting rights.

To understand how significant the foregoing figures are, remember this. These interests that Sotomayor strongly favors do not arise in a vacuum. They are certainly all worthy. But in the difficult, close cases we are focusing on, these interests are always competing with others that are also quite important.

For example, protecting children sometimes competes with interests in religious freedom, parental rights, privacy, and free speech to name a few. Criminal due process typically competes with crime control and just punishment--especially compelling when the crimes being investigated or prosecuted are particularly heinous. Business accountability often competes with a robust free market and other commercial interests. Weeding out inequality often competes with personal and institutional choice, often made for reasons having little or nothing to do with intentional discrimination.

Regardless of competing considerations, however, Sotomayor overwhelmingly took positions to favor the 4 interests identified. Stated otherwise, those other considerations were subordinated to her favored interests in virtually all the opinions she wrote in cases where there was a conflict.

This point is underscored by contrasting Sotomayor's record with that of her colleagues. Specifically, let's contrast the frequency with which Sotomayor argued in support of the 4 interests we've identified, with the frequency that the majority of her colleagues--i.e., the court--did so in the same cases.

Common Threads in Sotomayor's Opinions
Versus Her Colleagues

(click to enlarge)

The contrast is quite substantial. In fact, the frequency with which a majority of her colleagues sided with Sotomayor's favored interests in these divided cases is too low to consider any of them a common thread in the majority opinions. Certainly not to any degree approximating that in her opinions.

Protecting children: Sotomayor, 100%. The majority of her colleagues, 60%. And that's the closest it gets. Criminal due process: 80% - 33%. Business accountability: 90% - 50%. Minority equality: 100% - 33%.

Let's conclude with an of example of how these common threads in Sotomayor's opinions--i.e., her favored interests--have affected the results she reached. Consider what appears to be her overriding interest in protecting children, and how this has played out in her review of convictions for crimes involving child victims.

We've already discussed (both in this post and the immediately preceding one) that Sotomayor's opinion record in criminal cases is quite liberal. She strongly favors the rights of suspects, accuseds, and the convicted. As we just saw, her opinions sided with the claims of criminal due process in 80% of the divided cases (as contrasted with the 33% for the majority of her colleagues in the same cases).

I said earlier that the criminal cases involving child protection are not included in these figures. I excluded them to highlight the impact that the consideration of child protection has on Sotomayor's opinions. While her opinions sided with the claims of due process violation 80% of the time (i.e., excluding cases involving crimes against children), her opinions NEVER sided with such due process claims when crimes of child victimization were involved. In 3 out of 3 divided cases involving crimes of child victimization, she OPPOSED the due process claims. 100% conservative! That, however, coincides with Sotomayor's 100% opinion record--in both criminal and civil cases--of taking the side more protective of children, or more tough on their offenders.

U.S. v. Falso (Sept. 2008) is instructive. In that case, Sotomayor authored a majority opinion upholding child pornography convictions. The problem was that the evidence supporting the convictions was obtained through an unconstitutional search. All the judges agreed on that. And they all agreed that the evidence normally could not be used. (For those unfamiliar, that's what's called the "exclusionary rule.") Nevertheless, Sotomayor argued that it was okay for the prosecution to use the evidence in this case because the investigating officer's mistake in conducting the search was made in good faith. (For those unfamiliar, that's what's called the "good faith exception" to the exclusionary rule.)

The problem with THAT, however, as the dissenter made clear, was that the police officer in the case had not acted in good faith at all. Yes, the officer had a warrant authorizing the search. But he had recklessly disregarded the truth, and perhaps deliberately lied, when he himself obtained the warrant--which all the judges agreed was no good.

It is very difficult to read the opinions in that case--Sotomayor's and the dissenter's--without concluding that Sotomayor had stretched the law and the facts. It's pretty evident that she did so in order to be able to uphold the child pornography convictions. Outside the realm of child pornography, pedophile, and related child victimization cases, Sotomayor's record of supporting the rights of the accused strongly suggests that she would not otherwise have ruled the way she did.

Similarly, it is pretty clear when reviewing all of Sotomayor's opinions in the close, divided cases, that each of the common threads identified here--i.e., her favored interests--has influenced the positions she has taken. Most judges, if not all, are affected in like manner. No doubt, some more than others. For Judge Sotomayor, her opinions evince considerable influence from some interests that are readily identifiable.

This has been the 4th in a series of posts on New York Court Watcher examining the judicial record of Supreme Court nominee Sonia Sotomayor. (See Sotomayor--Let's Put the Cards on the Table (Versus Her Colleagues), June 3, 2009; (Ideological Patterns in Her Opinions), June 2, 2009; (First, Some Prefatory Comments), May28, 2009.) Forthcoming posts will look at some selected opinions--representative of her best and the opposite--and at some of her non-judicial statements and writings that are currently causing such public and partisan-political stir.