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Supreme Confrontation

The Supreme Court issued its final opinions of the term yesterday, and David Souter said his farewell to the bench. On July 13, the Senate Judiciary committee will begin confirmation hearings for Sonia Sotomayor, who will almost certainly replace Souter in the fall. A look back on the term helps illustrate how little those hearings are likely to tell us about the impact Sotomayor will have on the court.

Sotomayor will undoubtedly, and deservedly, be grilled about Ricci v. DeStefano, the Title VII civil rights in which the high court yesterday reversed her. But court-watchers should be more immediately interested in those cases where Sotomayor could actually change things, i.e. the cases where Souter provided a decisive vote.

Ten cases argued before the Court this term (and one case summarily remanded without oral argument) were decided on 5-4 votes in which Souter was in the majority. Five of those broke along the standard lines, with the liberal wing of the court -- Souter, Ruth Bader Ginsburg, John Paul Stevens, and Stephen Breyer -- joining swing-voter Anthony Kennedy in the majority. Assuming, reasonably, that Sotomayor joins the liberal wing on most issues, she is unlikely to make a difference in any of those cases.

She may well make a difference, though, in cases in which liberal and conservative justices form novel coalitions. Souter was in a five-justice majority in several cases this term, including cases involving the National Banking Act (Cuomo v. Clearing House Association), the Federal Arbitration Act (Vaden v. Discover Bank), the limits of punitive damage liability under maritime law (Atlantic Sounding Co. v. Townsend), and the definition of a reasonable search and seizure under the Fourth Amendment (Arizona v. Gant).

Most immediately in peril is Melendez-Diaz v. Massachusetts, a decision handed down last week concerning the Confrontation Clause of the Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the be confronted with the witnesses against him." Arguing for the majority, Antonin Scalia staked out the straightforward position that this means that the defense in a criminal case has the right to cross-examine a forensic analyst who signs an affidavit attesting to a certain result (in this particular case, the affidavit stated that the defendant was carrying a certain quantity of cocaine). Scalia was joined by his fellow originalist Clarence Thomas, along with Ginsburg, Stevens, and Souter. Justice Kennedy's emphatic dissent is rooted mostly in the "pragmatic" argument that this would unduly burden prosecutors and courts. "Many States have already adopted the constitutional rule we announce today," responds Scalia, "while many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution's intent to use a forensic analyst's report... [T]here is no evidence that the criminal justice system has ground to a halt in the States that, one way or another, empower a defendant to insist upon the analyst's appearance at trial."

Yesterday it was announced that the High Court will hear Briscoe, et al., v. Virginia, another Confrontation Clause case involving a certificate prepared by a forensic analyst. There has been some speculation that Sotomayor might prove more prosecution-friendly than Souter, and thus might vote to narrow the scope of Melendez-Diaz, or even overturn it.

Don't expect to learn much about Sotomayor's views on the Sixth Amendment during her confirmation hearing, though. As important as it is to determine how defendants may challenge forensic evidence (which is much more fallible than the average episode of CSI suggests), it isn't an issue that inflames the sort of partisan passions that drive Senators' questions (in part precisely because it divides jurists along ideologically unpredictable lines). Even if Sotomayor were asked about the Confrontation Clause, she could quite reasonably respond that it would be unethical to comment on an issue she can expect to rule on in the future. Needless to say, Senators aren't likely to spend much time asking about banking regulations or maritime tort law, either. The confirmation process may make good political theater, but it has strikingly little to do with the immediate practical effects of confirming a nominee.

Letter to the Editor

Supreme Court, Supreme Court Nominations, Confrontation Clause

John Tabin is a frequent contributor to The American Spectator online.


Robbins Mitchella| 6.30.09 @ 6:16AM

Well,so much for the 'wise Latina' meme that has been her raison d'etre on the Federal bench....having had her presumed Latina 'wisdom' ripped to shreds by all 9 SCOTUS Justices for voting for summary judgment in the Ricci case.....this simply shows that she lacks genuine 'empathy' and that her decision was founded on what was clearly a blatantly racist political calculation....that alone ought to disqualify her from the US Supreme Court

Alex Fisherr| 6.30.09 @ 6:22AM

The departure of David Souter from the bench is really expected to have some real impact upon the decisions to come soon from the Supreme Court. Sonia Sotomayor is believed to be more prosecution-friendly than Souter, and thus might vote to narrow the scope of Melendez-Diaz, or even overturn it. It is quite an important statement to make. I suppose that this article is just covering the expected role of Sonia Sotomayor in forthcoming hearings. I hope to see some articles on other web hosting service as well presenting a comprehensive picture of the issue with some relevant past examples cases.

Ryan| 6.30.09 @ 8:06AM

I'm hoping that the entire thing turns into an issue of ideology battles. It's a VERY good platform for conservatives to promote originalist reasoning in the process.

I think that a classic - ie all-nighter - filibuster may also be a good idea here.

Siegfried X| 6.30.09 @ 8:08AM

Good points. The one thing Souter was good at was being tough on crime. The Republicans are set to rubber-stamp her nomination, with the usual suspects (RINOs) voting with the Democrats.

Pingback| 6.30.09 @ 8:38AM

The Agitator » Blog Archive » Morning Links links to this page. Here’s an excerpt:

…clown robs liquor store. Sued if you do, sued if you don’t –the real problem with the Ricci case. Good interview with Peter Neufeld, co-found of the Innocence Project. There, I Fixed It. Via John Tabin, if the U.S. Senate confirms Sotomayor, last week’s SCOTUS ruling granting criminal defendants the right to cross-examine forensic experts who author reports submitted into evidence may already be…

Michael Tomlinson| 6.30.09 @ 11:27AM

I have read that Sotomayor has been overturned 60% of the time. If true it means not only will a racist be interpreting the Constiutionality of laws, but one of the dumbest jurists in the land. Clearly, elections do have consequences.

Paul from SA| 6.30.09 @ 11:42AM

I disagree with your statement, "Sotomayor will undoubtedly, and deservedly, be grilled about Ricci v. DeStefano,...."

She should be grilled, but she won't.

I think this decision just made all the Republicans on the Judiciary Committee nauseated. Grilled? No, but now they will be required to bring up the subject of race (darn it!) because of this decision. Race is the single-most subject they are afraid of. They do not want what happened to Trent Lott happen to them. Look for the Republicans to treat her with kid gloves.

Al Adab| 6.30.09 @ 1:07PM

First, the RINOs are the Republican party. That is why it fails. It was the Conservative movement that brought it success in 1980, 1996.
Second, perhaps this court ruling, bringing to light the sorry record of this nominee, will encourage the growth of a spine in the few Conservative Senators left. Her record leaves her unqualified for the position. The issue is truely the Rule of Law over the statist agenda. Tyranny seeks to impose its will over the choices of the people. Free nations create law through a legislative process while tyranny imposes it from the top or bench in this case. That so many of our elected representatives feel that the voters who selected them are an ignorant mass to be led simply reveals how far we have fallen. Some GOP Senators will make certain she is confirmed. However, Conservatives must stand for our Constitution and the Rule of Law against even domestic enemies. After all the oath of office is to support the Constitution not necessarily a government. A judge whose rulings so often violate the Constitution that the higher courts work at overturning them is a clear and present danger. Stand up and be counted even in the face of failure.

John Navratil| 6.30.09 @ 5:58PM

I have not been able to find the statistics of decisions of the Supreme Court of the U.S. to note how many times Appeals Court justices are reversed. If the SCOTUS had to review all cases one would expect a small number of reversals indicative of a set of laws which basically had things right. Given that they grant writs to only those cases they choose to hear, I would expect to see a somewhat higher number of reversals given that the purpose of SCOTUS review is to correct errors in the law.

Does anyone have any statistics? It may be that Sotomayor being overturned 60% isn't as damning as it appears. The justice who only has one decision reviewed will either have a 0% or 100% reversal rate. How many times has a Sotomayer decision been reviewed? (60% indicates at least 10.) How many times per year does the average Appeals Court justice get reviewed? Is Sotomayor's rate outstanding for any reason?

I'm no fan of what I know about Sotomayor's philosophy, but numbers out of context can tell many tales. Remember there are lies, damned lies and statistics.

nicky| 7.1.09 @ 2:56AM

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DaveS| 7.1.09 @ 8:08PM

You can get 60% from 3 out of 5 (because both "6" and "10" are not prime numbers.) But 3 out of 5 is not as assuring of competence as, say, 1 out of 5. And remember, these 'samples' are based upon what the Appeals Court agrees to take - so it's not a real random situation of take-on cases here. Her views should be explored; 'grilled' is the word a Republican's nominee would hear in advance.

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