Bench Memos

Judge ‘Hang-‘Em-High’ Sotomayor

This morning, Vice President Biden is staging an Obama administration rally of some law-enforcement groups to try to bolster a weak spot for her Supreme Court nomination. It’s an unprecedented political campaign by a White House for a judicial nominee.

In light of yesterday’s Caperton decision by the Supreme Court, one wonders whether Judge Sotomayor will now have to recuse herself from any cases to which law-enforcement groups are parties? After all, this event will be worth millions in free media.

In the past, outside groups have held such events independent of the White House and were not controlled by the White House. Today’s event looks like a county sheriff election rally. The purpose of this sideshow is to avoid facts in Sotomayor’s actual record that indicate a soft-on-crime judge who twists the law, particularly law at the intersection of race and crime issues, and who avoids binding precedent as a lower court judge in ways that unnecessarily favor criminals and hinder law enforcement.

A few examples:

a. Judge Sotomayor and the White House have failed to disclose information about her past activism on crime-related issues and have withheld from the Senate at least one pertinent document, the memorandum she signed when she was an assistant D.A. in Manhattan, asserting that “capital punishment is associated with evident racism in our society” and making other one-sided and irresponsible assertions about the death penalty. It’s hard to believe there is not much more in the record, in addition to this omitted memo which the White House has called a “clerical error.”

b. Judge Sotomayor would have needlessly hampered law enforcement, dissenting from denial of rehearing a Second Circuit case en banc, with her view that police created an “express racial classification” just because they searched for a black suspect, when a 70 year-old woman was attacked and described her assailant as a young black man.

c. Judge Sotomayor would have granted the claim of convicted felons who are in prison that their right to vote had been violated on account of race or color. Her fellow Clinton appointee, Judge Jose Cabranes, ruled for the majority that imprisoned felons have not been disenfranchised on account of race under federal law just because they are in prison and accordingly cannot vote. Judge Sotomayor dissented, saying she would grant the claims of the imprisoned felons.

d. The U.S. Supreme Court reversed Judge Sotomayor’s ruling in which she attempted, contrary to existing Supreme Court precedent, to create a federal right for prisoners to sue private prison contractors for alleged violations of their constitutional rights.

e. Judge Sotomayor has undermined law enforcement and done a disservice to public servants in the fire and police departments with her race-based activism, both on and off the bench, in pressing for racial preferences and quotas that deny jobs and promotions to qualified white police officers and firefighters. In the Ricci case, now being reviewed by the U.S. Supreme Court, she allowed the City of New Haven to deny merit-based promotions to firefighters on account of race. And when she served on the board of the Puerto Rican Legal Defense Fund, the PRLDEF forced the New York City police department to institute racial quotas for the hiring and promotion of police officers. Like her PRLDEF work on the death penalty, she and the White House have not disclosed this to the Senate.