Dispatches from the Creation Wars

A lot of liberals and libertarians have expressed some concern that Judge Sotomayor may end up being relatively conservative when it comes to criminal justice issues. This LA Times article is not likely to soothe those fears. Her background as an aggressive prosecutor and her history of court rulings on such issues as search and seizure do not paint a good picture.

Though her critics portray the Supreme Court nominee as a liberal activist, her colleagues and legal opponents in the early 1980s draw a picture of her as a zealous prosecutor whose experiences combating crime have made her, according to experts who have studied her legal decisions, something of a law-and-order judge, especially when it comes to police searches and the use of evidence.

In two major rulings after she joined the U.S. 2nd Circuit Court of Appeals in New York in 1998, she held that evidence could be used to convict a defendant even though police had violated his rights in seizing it. Sotomayor said that because the police and prosecutors acted “in good faith,” the evidence need not be thrown out.

In 1999, Sotomayor upheld the crack cocaine conviction of a New York man despite what she called a “mistaken arrest.” Last year, Sotomayor spoke for a 2-1 majority that upheld a man’s child pornography conviction, even though she agreed an FBI agent did not have probable cause to search his computer.

“I think her experience as a prosecutor balances out her liberal tendencies,” said New York University law professor Kenji Yoshino…

Gerald Lefcourt, a high- profile criminal defense lawyer in New York, appeared before Sotomayor while she was a federal district court judge. “She always seemed to be leaning toward the government — not outrageously so, but if you look at a lot of her criminal law cases you can see she’s pretty conservative,” he said.

Lefcourt wasn’t surprised. He had faced off against Sotomayor when she was an assistant district attorney.

Sotomayor was “very police-like,” he said. “Dismissive of what the defendant had to say about anything.”

Balko says that the picture emerging of Sotomayor is “one of a left-leaning authoritarian, sort of a mirror image of Samuel Alito. She’ll be a reliable vote to uphold government power, be it for cops, prosecutors, regulatory agencies, or the executive.” If that turns out to be true, that will be very disturbing. I think it’s too early to tell at this point, but I’d like to see some of the liberals on the judiciary committee to question her about this rather than just cheerleading for her because a Democrat appointed her (the way Republicans did with Roberts and Alito).