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Is Sotomayor a Favorable Choice?

July 15, 2009

Author:  Dom Rizzi

The Senate confirmation hearings for Sonia Sotomayor began this week. But the real question that arises for the public when considering President Obama’s selection is not whether she will be confirmed but, rather, whether she is a favorable choice. There are obviously many considerations — too numerous to mention all of them here — but here are a few issues that you may want to ponder.


Our history tells us that a presidential nominee’s religion should not even be thought of as a possible unfavorable factor in determining whether the candidate is qualified to become a member of the U.S. Supreme Court. Before President Wilson nominated Louis Brandeis in 1916, court nominees were confronted with little and often no opposition in the Senate.

Brandeis’ nomination, however, stirred a firestorm of controversy in the Senate. Why? The probable answer, in part, at least, is because he was Jewish. Esteemed conservatives, such as Henry Cabot Lodge and former President Taft probably could not accept the fact that a Jewish lawyer could or should become a judge on the highest court in the land. Brandeis, of course, was confirmed over opposition, by a vote of 47-22.

Subsequently, other Jewish judges on the court who, like Brandeis, have served admirably include Cardozo, Frankfurter, Goldberg, Fortas, Ginsburg and Breyer.

So why is Sotomayor’s religion — Catholic — even being mentioned after she was nominated? Every decent American would agree that her religion does not factor into whether she is qualified to sit on the court. However, an entirely different question arises concerning her religion.

There are presently five Catholics on the court: Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Chief Justice John G. Roberts, and Samuel A. Alito Jr.  Sotomayor would become the sixth Catholic on a nine-member court of last resort for the entire nation. Sotomayor, Scalia, Thomas and Roberts all attended pre-university Catholic schools.

A question arises as to whether those circumstances are a plus, a negative, or even a consideration. Would one’s answer be the same if the question were posed as six Jewish or Mormon members instead of six Catholic members? One could expand the question to ask, “What if the she would become the sixth African-American on the court?”

One’s answer would not relate to whether Sotomayor is qualified to be on the court, because plainly she is qualified, but, rather, the answer would relate to whether the president’s selection of Sotomayor is a favorable choice considering the constituency of the court at this time.

Of course, while Sotomayor’s Catholic background may influence how she personally feels about certain subjects, her Catholic background is not an indicator as to how she would decide legal issues. Justice Brennan was a Catholic, and so is Justice Scalia. But you would never know that they had anything in common, let alone religious beliefs, based upon their opinions, the former considered a great justice by liberals, and the latter considered a great justice by conservatives.

Nonetheless, it is the “stacking” of six out of nine that is somewhat troublesome to some people when they have to answer whether Sotomayor is a favorable choice to become a member of this present court.

The New Haven Firefighters Case

The U.S. Supreme court decision in the Ricci v. DeStefano case is a landmark affirmative action case.

Basically, the court held that Frank Ricci and 17 other New Haven firefighters suffered illegal discrimination when a promotion test on which they achieved high-enough scores to be promoted was not certified by the city of New Haven because no African-Americans had scored high enough to be promoted.

Justice Ruth B. Ginsburg wrote a dissenting opinion in which three other justices concurred, basically arguing that the examinations violated the Civil Rights Act because of disparate impact discrimination.

The district court in New Haven had entered a summary judgment in favor of the City of New Haven, and an appeal was taken to the 2d Circuit Court of Appeals, where Sotomayor is presently a judge. Sotomayor and two other judges, in a one-paragraph unpublished summary order affirmed the decision in favor of New Haven.

Later, the unpublished summary order was withdrawn and in its place a nearly identical, one-paragraph opinion was issued adopting the district court’s reasoning. Three days later, the court of appeals voted 7-6 to deny rehearing by the full appellate court. Sotomayor voted to deny a full court rehearing. Two judges filed written dissents from the denial. One of the dissents states that the questions posed were exceptionally important “constitutional and statutory claims of first impression.”

Whether one agrees or disagrees with the U.S. Supreme Court or Sotomayor on the merits of the Ricci case is subject to legitimate debate. What is not subject to reasonable debate however, is the fact that Sotomayor exercised poor judgment in the procedure that she used to dispose of the case.

There is no question that the Ricci case presented issues of public and constitutional importance. Yet, Sotomayor inexplicably concluded that the case had no precedential value and was not even important enough to warrant a written published opinion. I believe that Sotomayor exercised poor judgment in handling the case.

How Sotomayor feels about the merits of the Ricci case is significant only with respect to whether, or to what extent, the disparate impact provisions of the Civil Rights Act are consistent with the guarantee of equal protection in the Constitution.

As Justice Scalia said in his concurring opinion: “The war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how — and on what terms — to make peace between them.”

Ergo, will we continue to have affirmative action laws or will they be held unconstitutional? Bear in mind that in 2003, Justice Sandra Day O’Connor stated in the Grutter case: “The court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” And four judges dissented from approving racial preferences in the Grutter case.

The 4th Amendment and the Exclusionary Rule

Having been a member of the judiciary and an appellate court judge for 20 years, I saw firsthand the importance of the 4th Amendment and the need and benefits of the exclusionary rule. It is for that reason, perhaps, that I am disturbed by the U.S. Supreme Court’s opinion in the Herring case, decided in January.

The gist of Herring is whether evidence obtained in an arrest that was made without probable cause and based on the erroneous existence of a warrant because of errors by police personnel can be used against an accused to convict him. The court accepted “the parties’ assumption that there was a Fourth Amendment violation.” Nonetheless, the court held in a 5-4 decision that the exclusionary rule did not apply. Why? Because the court applied a “good faith” test.

In other words, if the police believed that the warrant was valid that’s OK, even if the warrant was not valid.

I believe that the court’s decision is a bad one because I have seen too many cases where police officers have lied under oath and their “good faith” testimony lacked good faith. It should be remembered that a police officer is not an unbiased witness in a criminal trial. Rather, he is a witness on behalf of one of the parties — the government.

While almost all police officers are presumably honorable, dedicated public servants, the reality is that there are some who are not. Since an accused must be proven guilty beyond all reasonable doubt in a criminal case, the so-called good faith of the police is therefore entitled to no higher and no lesser application than the good faith of the accused.

I bring up the Herring case here because 10 years ago Sotomayor had a case in which virtually the same issue was involved and she too held that seized evidence was admissible against a defendant whose arrest was made without probable cause and without a valid warrant.

In the Santa case, the defendant moved to suppress the evidence as being the result of an unconstitutional arrest. Sotomayor held that the evidence should not be suppressed under the exclusionary rule.

The only difference between Santa and Herring is that in Santa clerical errors of court employees caused the warrant to be invalid, and in Herring errors of police personnel caused the warrant to be invalid. But the result of the two cases is the same: an erosion of the exclusionary rule.

What the public must appreciate — sooner or later — is that the more the exclusionary rule is eroded, the more their Fourth Amendment rights will be violated.

Thus, some people would have a more favorable view of Sotomayor as a Supreme Court nominee if she would have shown a proclivity for vigorously protecting what the Fourth Amendment guarantees. Some people may feel that we do not need another member on the Supreme Court who seems to agree with the existing members on the erosion of the exclusionary rule. There are others, of course, who feel that Santa and Herring were decided properly and look favorably upon Sotomayor’s decision in Santa.

The Deskovic Case

One person who does not believe that Sotomayor is a favorable choice for the Supreme Court is Jeffrey Deskovic. Here is what he has to say: “To hear that a judge who put procedure over innocence could be moving to a higher court is very upsetting to me.”

In 1991, when he was 16, Deskovic was imprisoned for killing a high school classmate. The conviction was in New York. In 1997, Deskovic retained counsel in Georgia to file his federal habeas corpus petition, claiming his innocence and that DNA offered proof of his innocence.

The attorney mailed the petition to the federal court in New York on April 24, 1997, and the court received and filed it on April 28. The attorney had telephoned the court clerk in New York, who said that the petition would be deemed filed as of the date it was mailed rather than the date it was received. Actually, according to the act for filing petitions for habeas corpus, the petition had to be filed by April 24. Thus, the petition was filed four days late.

The district court judge therefore dismissed the petition, and an appeal was taken to the 2d Circuit. The case was assigned to Sotomayor’s three-judge panel, but, due to illness, one of the judges did not participate in the oral argument or disposition of the case.

Sotomayor and the other judge on the panel disposed of Deskovic’s case by an unpublished disposition summary order of three paragraphs. In the summary order, Sotomayor stated: “The alleged reliance of Deskovic’s attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance. Similarly, we are unpersuaded that equitable tolling is appropriate based on Deskovic’s contentions that the four-day delay did not prejudice respondent, petitioner himself did not create the delay, his situation is unique, and his petition has substantive merit.”

Thus, Deskovic spent six more years in prison, until DNA found in the victim absolved him of the crime and connected another man to the crime.

Deskovic spent 16 years in prison for a crime that he did not commit. Six of those years were after Sotomayor filed her summary order disposition. Deskovic is now 35. Since his release he has graduated from college.

In a sense, I guess that the Deskovic case demonstrates that Sotomayor is not an activist judge who will let empathy cloud her judgment and influence her decisions on the Supreme Court, which, for some, would make her a favorable choice. On the other hand, there are others who feel that her handling of the Deskovic case demonstrates that she is not a favorable choice and that she will do nothing to change the direction of an already conservative court.


Sotomayor’s academic credentials are outstanding. She graduated summa cum laude and Phi Beta Kappa from Princeton, and graduated from Yale Law School after serving as an editor of the law review. Parenthetically, when she becomes a member of the Supreme Court, she will become the eighth member to have graduated from either Yale or Harvard. The one exception is Justice John Paul Stevens, who went to the University of Chicago and Northwestern.

Sotomayor also served as a district court judge for over six years, and as a federal circuit court of appeals judge in the 2d Circuit for over 11 years.

Her stellar background makes it absurd to even question whether she is intellectually competent, or whether she has the experience, to become a Supreme Court justice. Also, the significance of her presence as a Latina on the court, in and of itself, cannot be overstated. It is huge symbolically, as well as for bringing added sensitivity to the court on myriad issues.

Yet, it may be subject to debate whether she is a favorable choice to become a judge at this time on the present court. Despite outstanding academic credentials and her presence as an editor on the Yale Law Review, there does not seem to be a single law review article or legal position paper by Sotomayor that is drawing widespread praise.

In a sense the same passive significance is true with respect to her judicial career. She has been a reviewing court judge in a major circuit for over 11 years, and few, if any, of the opinions that she has authored are drawing high praise.

As a result, one cannot really assess her judicial philosophy, or even know her judicial philosophy. Thus, the expectations of Sotomayor going on the court and altering or changing its course, or of her becoming a visionary leader on the court, are not great.

These are important factors to consider, because if she cannot convince or win Justice Kennedy, a moderate flexible conservative, to her side, her presence on the court will go unnoticed.


There appears to be no question that Sotomayor is qualified and competent to become and will become a member of the Supreme Court. The question of whether she is a favorable or unfavorable selection by President Obama, however, is puzzling.

It is puzzling because it is too hard to state her judicial philosophy in any clear terms. Some may say that is good because it demonstrates that she is not an activist judge and will interpret the law as she finds it.

However, when she has been on a reviewing court for 11 years and one still cannot determine her judicial philosophy, it could also mean that the expectations are that she will do little to change the course or leadership of the present conservative court. If the latter is true, does that make President Obama’s selection a favorable choice? It depends.

About the author: Dom Rizzi is a former Illinois Appellate Court judge.

One Comment leave one →
  1. Clerk permalink
    July 15, 2009 3:18 pm

    Very insightful – adds new dimensions to an already interesting nominee.

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