Sotomayor Seen As Moderate On Criminal Justice

Analysts see Judge Sonia Sotomayor as a moderate whose decisions in criminal cases rarely differ from those of her colleagues on the federal bench. Some say her experience as a prosecutor and her record on the bench might make her more conservative than Justice David Souter on criminal justice issues.

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ROBERT SIEGEL, host:

Today, leaders from national law enforcement organizations gathered on Capitol Hill. They met to express support for Judge Sonia Sotomayor's nomination to the Supreme Court. The chairman of the Senate Judiciary Committee, Patrick Leahy, led the event.

Senator PATRICK LEAHY (Democrat, Vermont; Chairman, Senate Judiciary Committee): Judge Sotomayor's criminal justice record proves she's a moderate judge. These decisions in criminal cases rarely differ from those of her colleagues in the federal (unintelligible)

SIEGEL: NPR's Ari Shapiro has been studying Sotomayor's record on criminal justice issues, and he has this report.

ARI SHAPIRO: Sonia Sotomayor spent five years as a prosecutor in Manhattan. She spent six years as a trial judge and ten years as a federal appeal courts judge. So she has a lot experience with criminal justice issues. Bill Yeomans is legal director at the Alliance for Justice. His group has played a leading role in the Sotomayor nomination to the Supreme Court.

Mr. BILL YEOMANS (Legal Director, Alliance for Justice): Given, you know, the length of her judicial experience combined with her time as a prosecutor, I think it's fair to say that she has confronted more criminal matters than anybody who will be sitting with her.

Professor DOUGLAS BERMAN (Law, Ohio State University): That's not saying much, right?

(Soundbite of laughter)

SHAPIRO: Doug Berman is a law professor at Ohio State University.

Prof. BERMAN: That's a little bit like saying, you know, she's a lot taller than the people in my family, right?

(Soundbite of laughter)

SHAPIRO: The Berman family is not a family of basketball players.

Prof. BERMAN: No, it is not at all, right, exactly.

SHAPIRO: The current Supreme Court does not have a lot of people with criminal justice experience. None of the justices has been a federal district court judge. So this is one area where Sotomayor could be influential. She has spent years applying Supreme Court rules to real world cases. And Case Western Reserve University law professor Jonathan Adler says that gives her a valuable perspective.

Professor JONATHAN ADLER (Law, Case Western Reserve University): Just having someone with that kind of practical experience with sentencing defendants and trying to implement the court's criminal law opinions in the context of actual trials and actual cases, I think it will affect the way the court writes about and explains its (unintelligible) in the criminal law area.

SHAPIRO: Professor Adler is generally conservative and he disagrees with Sotomayor on some major issues, but on criminal justice, he says, she tends to go more or less down the middle.

Prof. ADLER: If one looks at the decisions that - of hers - that are the most controversial or that are the most likely to get a lot of attention during the hearings, you're not seeing criminal cases.

SHAPIRO: That's especially noteworthy because, as Professor Berman points out, there is so much material there.

Prof. BERMAN: She could not have possible spent as long as she has as a judge in the federal system without accumulating lots and lots of rulings. And yet it's interesting to see that there isn't one that jumps out as a hawk - here's where she gives her, sort of, theory of criminal justice.

SHAPIRO: Berman says Sotomayor always seems attentive to her role - what specifically is she supposed to do as a prosecutor, as a trial judge, as an appellate judge. That means her actions to date might not be a good road map for what she would do on the Supreme Court. And that worries Sotomayor's critics such as Ed Whelan of the Ethics and Public Policy Center.

Mr. ED WHELAN (Ethics and Public Policy Center): From the very moment she went on the second circuit, lots of folks were identifying her as a leading contender for a Supreme Court nomination. So, you know, she had ample incentive to trim her sails, consciously or not, and the various constraints in the Senate that have shaped behavior so far, will not be there, if and when she's on the Supreme Court.

SHAPIRO: Looking at Sotomayor's experience as a prosecutor and her record on the bench, some people have concluded that on criminal justice issues, she may be more conservative than the justice she is replacing, David Souter. Whelan scoffs at that idea.

Mr. WHELAN: It's difficult to take seriously that the White House has picked her because it expects her to be more conservative than Justice Souter on criminal procedure issues, or that actually has any expectations that she will be, I just don't see that.

SHAPIRO: Ideological labels aside, today the American Bar Association unanimously rated Sotomayor well-qualified. That's the highest rating the ABA gives, and it's the same rating the organization gave President Bush's two Supreme Court justices.

Ari Shapiro, NPR News, Washington.

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