Making Negatives Out of Positives in Sotomayor's Rulings

By most accounts Judge Sonia Sotomayor has a well-qualified resume. Except from conservative ideologues, she brings broad support to her confirmation hearings. Nevertheless, as the hearings approach, the Washington Post's Jerry Markon weighs in. And it appears he's trying hard to turn positives into negatives.

I’d like to ask: Since when is thoroughness a liability? If you're the Democratic nominee for the Supreme Court, Sonia Sotomayor. In a recent Washington Post article, Jerry Markon purports to analyze Sotomayor’s rulings. Said, Markon, she “delivered those rulings with a level of detail considered unusual for an appellate judge.” She has made herself an expert on a number of issues. However, we are told she does a “granular” analysis of every piece of evidence. How very wrong of her (snark)!

When it comes to analysis, I might question that done by the author—and his main source, So. Carolina political scientist, Donald Songer. First, he used a database of 5400 cases with labels of “liberal” or conservative,” depending on whether one ruled for the defendant (“liberal”) or the prosecutor “conservative”). Think about this: The operational definition here is strikingly stereotypical, and ideological itself. If one's operational definition is flawed, the research cannot show what the researcher claims it does.

Whether one rules for or against a defendant should have nothing to do with whether one is a liberal or conservative judge. And labeling a judge so means nothing, except politics. And what this prejudice (and is a prejudice) suggests is that those who believe such a thing cannot afford a defendant a fair trial. But from this operational definition and "analysis," Songer says “I don’t think it’s possible to classify her as tough on crime.” But being tough on crime does not mean that every prosecutor is right. It has nothing whatever to do with which side one finds for. But that is one way “tough on crime” politicians have tried to hijack our legal system. We want our prosecutors to enforce the law by bringing criminals to trial. But don’t’ we expect them to play by the rules? And if they do not, don’t we expect the courts to deal appropriately with prosecutors who don’t follow the law, or who violate due process? Don't we expect the process of the trial to be examined on appeal? Not everyone expects that, of course. For some are concerned, you can hear almost hear the derision of “technicalities” as justification for retrial. But there's more...

In one paragraph, the author makes sure to mention she supported the First Amendment. Isn’t that what all justices must do?

When she threw out one case to set free a convicted murderer, she is dissed by the WAPO writer because she didn’t base her ruling on his guilt but on the appropriateness of the charge he was brought up on. I am not a lawyer, but isn’t serving as arbiter of the process a primary task of the appellate level?

Of particular note, Republicans were furious when Sotomayor handed out a federally mandated minimum sentence, but simultaneously railed that the guidelines are an abomination. She explained later that her ire came from an aspect of the guidelines that Congress has now changed. But that's no excuse (snark!).

In another study reported on NPR this morning (story not available online till later today), she actually convicted more often than her peers, AND she gave longer sentences for both white collar and other criminal violations. But our intrepid WAPO reporter doesn’t see fit to use such considerations. There’s a frame to be made.

Despite the fact that the writer acknowledges that “Her decisions are filled with citations of law and precedent,” he hangs around her neck the infamous “court sets policy" bruh-ha-ha), which she has clarified. But it is a fact that the appellate court does address how court cases should be tried (policy for that). The author also rips Sotomayor for obsessively immersing herself in facts, and then cites a fellow Democratic appointee who criticizes Sotomayor for "disregarding the judges "role as finder-of-facts."

Then the author says her style is "consistent" even when she finds against defendants. With bias and a negative frame such as Markon's, she cannot win. Honestly, this is how to smear and take apart a candidate, inch-by-inch. There’s more at the above link (ad nauseum). Suffice it to say, Mr. Markon was out to find in the negative for Sotomayor. And that’s mostly what he did. No lemonade from lemons here, only rotten lemons, faulty assumptions, and a biased case.