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Thursday, July 16, 2009

The Wise Prosecutor

In chapter 2 of my book, Governing through Crime (OUP 2009 pap), I describe how the war on crime transformed the political significance of prosecutors:

The prosecutor has long been a unique and important officeholder within the American systems of justice and government, with deep but limited powers and a special claim to represent the local community as a whole. In the last decades of the twentieth century, however, the war on crime reshaped the American prosecutor into and important model for political authority....


That authority was on display in the past two days of Sotomayor hearings as the Judge deflected some of the harshest attacks of Republican Senators by invoking either her law enforcement perspective generally, or her prosecutorial experience in particular.  The tactic has been quite effective.  Not surprisingly, Senators of both parties are disinclined to follow their critique of Judge Sotomayor's subject perspective into a concern for her possible bias against criminal defendants or to question the appropriateness of empathy when it comes to  real or possible victims of violent crime.  Below the fold I offer a few examples.

On day 2 Judge Sotomayor turned Senator Hatch's pursuit of fundamental rights status for the 2nd Amendment into a veritable assault on victims with the skill of a fine, well, martial artist:

HATCH: Right, that's my point. That's my point. As a result of this very permissive legal standard -- and it is permissive -- doesn't your decision in Maloney mean that virtually any state or local weapons ban would be permissible?

SOTOMAYOR: Sir, in Maloney, we were talking about nunchuk sticks.

HATCH: I understand.

SOTOMAYOR: Those are martial arts sticks.

HATCH: Two sticks bound together by rawhide or some sort of a...

SOTOMAYOR: Exactly. And -- and when the sticks are swung, which is what you do with them, if there's anybody near you, you're going to be seriously injured, because that swinging mechanism can break arms, it can bust someone's skull...

HATCH: Sure.

SOTOMAYOR: ... it can cause not only serious, but fatal damage. So to the extent that a state government would choose to address this issue of the danger of that instrument by prohibiting its possession in the way New York did, the question before our court -- because the Second Amendment has not been incorporated against the state -- was, did the state have a rational basis for prohibiting the possession of this kind of instrument?

Every kind of regulation would come to a court with a particular statute, which judicial -- judicial -- legislative findings as to why a remedy is needed, and that statute would then be subject to rational basis review.

HATCH: Well, the point that I'm really making is that the decision was based upon a 19th century case that relied on the privileges and immunities clause, which is not the clause that we use to invoke the doctrine of incorporation today, and that's just an important consideration for you as you see these cases in the future.

Let me just change the subject…..[ LATimes transcript]


On day 3 Senator Coburn's bizarre Ricky Ricardo allusion came after getting his doctor shtick upended by Judge Sotomayor's prosecutor shtick:

COBURN: Well, I think that's what American people want to hear, Your Honor, is they want to know. Do they have a right to personal self-defense?

Do -- does the Second Amendment mean something under the 14th Amendment? Does what the Constitution -- how they take the Constitution, not how our bright legal minds but what they think is important, is it OK to defend yourself in your home if you're under attack?

In other words, the general theory is do I have that right? And I understand if you don't want to answer that because it might influence your position that you might have in a case, and that's a fine answer with me.

But I -- those are the kind of things people would like for us to answer and would like to know, not how you would rule or what you're going to rule, but -- and specifically what you think about, but just yes or no. Do we have that right?

SOTOMAYOR: I know it's difficult to deal with someone as a -- like a judge who's so sort of -- whose thinking is so cornered by law.

COBURN: I know. It's hard.

SOTOMAYOR: Could I...

COBURN: Kind of like a doctor. I can't quit using doctor terms.

SOTOMAYOR: Exactly. That's exactly right, but let me try to address what you're saying in the context that I can, OK, which is what I have experience with, all right, which is New York criminal law, because I was a former prosecutor. And I'm talking in very broad terms.

But, under New York law, if you're being threatened with eminent death or very serious injury, you can use force to repel that, and that would be legal. The question that would come up, and does come up before juries and judges, is how eminent is the threat. If the threat was in this room, "I'm going to come get you," and you go home and get -- or I go home.

I don't want to suggest I am, by the way. Please, I'm not -- I don't want anybody to misunderstand what I'm trying to say.

(LAUGHTER)

If I go home, get a gun, come back and shoot you, that may not be legal under New York law because you would have alternative ways to defend...

COBURN: You'll have lots of 'splainin' to do. [Washington Post transcript]


Toward the end of day 3, Senator Cornyn made another run at the "wise latina" quote from Judge Sotomayor's 2001 Berkeley speech, only to run into the wise prosecutor:

CORNYN: We're talking about judging.

SOTOMAYOR: You need to be a pilot who has good eyesight.

CORNYN: We're not talking about pilots. We're talking about judging. Right?

SOTOMAYOR: No, no, no. But what I'm -- was talking about there because the context of that was talking about the difference in the process of judging. And the process of judging, for me, is what life experiences brings to the process. It helps you listen and understand. It doesn't change what the law is or what the law commands.

My life experience, as a prosecutor, may help me listen and understand an argument in a criminal case. It may have no relevancy to what happens in a anti-trust suit. It's just a question of the process of judging. It improves both the public's confidence that there are judges from a variety of different backgrounds on the bench because they feel that all issues will be more -- better at least addressed. Not that it's better addressed, but that it helps that process of feeling confident that all of arguments are going to be listened to and understood.

CORNYN: So you stand by the comment or the statement that inherent physiological differences will make a difference in judging? [Washington Post transcript]

Posted by Jonathan Simon on July 16, 2009 at 11:20 AM | Permalink

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Comments

In a way, this strikes me as an important variation on the theme of Eugene Robinson's comment in the Washington Post about the baseline presumption of whiteness (and for that matter maleness) as a neutral attribute, which animates much of the criticism of Judge Sotomayor's purported empathy.
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/13/AR2009071302605.html?hpid=opinionsbox1

Riffing on that theme, Judge Sotomayor's ability to neutralize suggestions of bias by her invocation of her prosecutorial background highlights (as your book describes) the pervasiveness of crime and criminality on the one hand, and of victimhood and crime prevention on the other, as mechanisms for constructing individual and institutional identities in our society. Being inspired by and acting as a voice for the NYC tarzan killer victims, or continuing to approach legal questions from the perspective of a prosecutor (as she suggests in the self-defense quote you included above) aren't even viewed as "perspectives" at all. We are all victims; the orientation toward identifying, stopping, and punishing crime is a fundamental principle of social ordering.

Posted by: J. Laurin | Jul 17, 2009 3:04:23 PM

The way that Sotomayor's experience as a prosecutor is used as a prima facie rebuttal to criticisms that she's too radical, etc. is interesting (and illustrative of your thesis). However, I take issue with one part of your post: Coburn's comments weren't "bizarre," at least not for him. He probably says 10 or 15 things more outlandish before breakfast!

Posted by: Stephen G. | Jul 16, 2009 11:45:58 PM

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