All of DC is abuzz about President Obama's nomination of Sonia Sotomayor as the next Supreme Court Justice. Right-wing groups inveighed about her use of the word "empathy" as a factor in judicial decision-making, the gun rights crowd as labeled her an "enemy of gun-owners" by virtue of a per curiam decision she participated in rejecting a post-Heller argument that the 2nd Amendment was incorporated by the 14th and applied to the states, and even abortion rights supporters have expressed unease that some of her decisions don't appear to be as pro-choice as they could be. Most of this is nonsense, of course, and it should be kept in mind that much of this is driven by money: the various groups have found that court confirmation fights are a great way of energizing their bases and getting them to send in contributions.
Some efforts have been made to engage in a more thoughtful analysis of Sotomayor's record; if you've got several days with nothing to do, Overlawyered offers an excellent compendium of all manner of information on her legal work.
One in particular caught my attention. I handle mostly criminal stuff anymore, so my immediate thought was how a Justice Sotomayor would rule in those cases, especially considering she was a former prosecutor. An inkling can be gained from this post over on the Sex Crimes Blog. The author went through all of Judge Sotomayor's criminal cases (excluding habeas corpus), and compared her rate of reversal in favor of the defendant to that of other groups, as follows:
Average judge 6.28% of criminal appeals were decided in favor of the defendant
Average judge appointed by a GOP President 6.16%
Average judge appointed by a Dem President 6.53%
Average judge with prosecutor experience Exp 5.44%
Sotomayor 7.41% (54 cases)
What struck me about that was not that Sotomayor had a slightly higher rate of reversal (which the authors cautioned was not statistically significant given the small size of the date sample), but the reversal rates themselves. Put another way, in a Federal criminal appeal by the defendant, the government wins over 93% of the time.
I played around with Lexis and came up with some data indicating a substantially lower rate of affirmance in Ohio criminal cases: closer to around 83%. Still, that's not a number I'm necessarily going to share with my clients: "Yes, give me a lot of money to handle your appeal, and we may have slightly better than a one in five shot of winning."
Speaking of blogs, which I did several paragraphs back (yeah, I know my transitions are getting increasingly desperate), Jeff Gamso, the former head of the Ohio Chapter of the ACLU recently started his own, which can be found here. Jeff's not only one of the Bright Guys in the Room, he's also got a wealth of experience and insight into the justice system. He's made innumerable contributions to the criminal defense bar over the years, and his blog is just the most recent. I've added him to the blogroll, so check his stuff regularly.
Other stuff worth contemplating as the weekend approaches... From my bud Brian Wilson's blog we find that The Donald has filed a defamation suit against a reporter for having the temerity to write an article describing Trump as a "millionaire," rather than billionaire. The horror!... Some gay-marriage activists, unsatisfied with the California Supreme Court's upholding of Proposition 8, which banned gay marriage in the state, are taking the matters to Federal court, seeking an injunction against Proposition 8 on the grounds that prohibiting gay marriage is a violation of the Equal Protection Clause. There are several fascinating aspects of this. One is that the one of the lawyers representing the plaintiffs is conservative icon Theodore Olson, a founding member of the Federalist Society and solicitor general under George W. Bush. Another is that the other lawyer is David Boies; Boies and Olson squared off as opposing counsel in Bush v. Gore. The third is that many gay rights groups have criticized the lawsuit, saying that an attempt to win Federal court recognition is premature, and that it's better to work through the ballot box...
Speaking of the Supreme Court (damned transitions again), it came out with a signficant decision last week, ruling that the appointment of counsel for a defendant wasn't effective, in terms of invoking his 6th Amendment right against police interrogation, unless he specifically requested it, and intoned the magic words, "Mother, may I?" Well, it wasn't that bad, but as you'll see next week, pretty close. And one of the reasons I'd like to see a few more Justices on the Supreme Court who have a better than 7.41% reversal rate for defendants in criminal cases.