Tough questions on Sotomayor pushed out of Senate spotlight

By Michelle Chen Jul 15, 2009

Between anti-abortion hecklers and spurned white firefighters, it was mostly a thought-free zone in the Senate today. But outside the Beltway, a few folks have tried to cut through partisan bloviating to critique Sotomayor’s jurisprudence from the left. On Democracy Now!, a victim of a wrongful conviction recalled his experience with Sotomayor and the Second Circuit. A decade ago, Jeffrey Deskovic filed a court petition to challenge his rape and murder conviction, citing exculpatory forensic evidence and alleging that police had violated his Fifth Amendment rights by coercing a confession. Due to a clerical mix-up, he missed a critical deadline, which foreclosed his opportunity for habeas corpus review. He appealed to Sotomayor’s court but was again rejected, he said, because the court decided his case did not merit a reversal of the procedural ruling. Deskovic, who was eventually freed by DNA exoneration after 16 years in prison, reflected:

I don’t have confidence in Judge Sotomayor that she is committed to correcting wrongful convictions at every turn, wherever the facts and law indicates that that—or that that should happen or that she’ll step in when a quality legal argument is advanced that a trial is unfair, which goes to the matter of whether the verdict was reliable or not.

The issue of wrongful convictions starkly illustrates the racial and socioeconomic inequities embedded in the criminal justice system. But despite the bluster about identity politics and unfair bias on the Hill, lawmakers didn’t bother delving into questions of access to justice, or under what circumstances a person’s innocence claim should pivot on bureaucratic procedure. Glenn Greenwald and Daphne Eviatar of the Washington Independent have pointed out that, contrary to the right-wing meme of the empathy-oozing activist judge, Sotomayor has in at least one controversial case demonstrated the opposite disposition. Eviatar writes that in Norville v. Staten Island University Hospital, a discrimination case involving a middle-aged Black nurse left jobless after being injured at work, Sotomayor rejected Norville’s argument with marked rigidity, even coldness, and may have “miss[ed] the forest for the trees”

My own reading of the case is that she not only didn’t let her sympathies get in the way, but she may have gone too far in ignoring human “emotions and sympathy” to rule based on hyper-technicalities. By “emotions and sympathy,” I don’t mean bias; I mean the fact that discrimination cases are inherently about whether a supervisor made an employment decision based on an emotional, rather than an objective, assessment of an employee. And that requires a judge to let herself empathize at least a little with the situation the case presents.

Yet with all these questions in the backdrop, the confirmation process still serves primarily as a political circus, rather than a forum for vetting a jurist’s perspective—including her empathy or lack thereof, good and bad. Marjorie Cohn of the National Lawyer’s Guild commented after Sotomayor’s nomination:

Critics are focusing on accusations of judicial activism and identity politics rather than engaging in sound examination of her legal qualifications. Comments of this nature serve only to distract from meaningful discussion surrounding the judicial confirmation process.

That’s not to say Deskovic’s grievances or the Norville decision should be viewed as an authoritative source on Sotomayor’s legal philosophy. Yet Deskovic is arguably just as qualified to speak on Sotomayor as Frank Ricci, and he’d certainly bring a singular perspective to the myopic scope of the hearings. But in the end, Deskovic told Democracy Now!, both sides of the aisle shrugged at his story:

…politics has trumped justice, because I’ve been in numerous contact with the Senate Judiciary Committee, both the minority and the majority. I’ve sent them the decisions of Judge Sotomayor in my case. I expressed that I wanted to testify about the human impact of putting procedure over innocence and how that affected me and my family, wrongful convictions, in general. And basically, I got the runaround.

But come on, we all know how this one ends. The political theater playing out in the Senate this week is tightly scripted around talking points and foregone conclusions. Let’s hope that when Sotomayor finally gets to the bench, there will be a lot more room for debate. Image: Brendan Smialowski / The New York Times. Catch on the rest of RaceWire’s commentary on the Sotomayor hearings here.