Monday, June 22, 2009

Pennsylvania Prosecutor Goes Too Far

Someone needs to tell former DA and former (unsuccessful) candidate for Pennsylvania Attorney General Bruce Castor, Jr., that the Senate does not, and should not, ask judicial nominees how they will vote in specific cases coming before the court for which they are nominated.

We are, of course, talking about Judge Sonya Sotomayor, the President's nominee for the seat on the United States Supreme Court vacated by retiring justice David Souter.

In a
guest editorial written for the Philadelphia Inquirer, Mr. Castor says that "the United States Supreme Court will be reviewing a case of one of the commonwealth's worst." He is referring to Joseph Kindler, who was denied an appeal by the Pennsylvania Supreme Court because he had escaped after his conviction and during the time the conviction and sentence should have been appealed.

The Supreme Court long ago made clear that the right to appeal is an important guarantee that the death penalty is not arbitrarily imposed. So it's no surprise that they've granted review of Kindler's case. Even if Kindler wins, all he gets is a new appeal. He doesn't get set free. He doesn't even automatically get a new trial.

But Mr. Castor is concerned about the memo Judge Sotomayor co-authored (before her 17 years as a judge) as a member of the litigation committee of New York's Puerto Rican Legal Defense and Education Fund (you can read about the memo here, and the memo itself is here).

The Pennsylvania Prosecutor (and doubtless, a potential GOP candidate for some statewide job in the future) says that Judge Sotomayor should be asked specifically how she will rule in the Kindler case:

"What is not clear is how Judge Sotomayor will side on the Kindler case this fall should she be confirmed.

Would Judge Sotomayor side with the Pennsylvania jury, Pennsylvania law enforcement and courts that took a stand against a violent criminal and clear escape risk? Or, will she side against Pennsylvanians and allow a federal court to take a murderous criminal off death row where Pennsylvanians decided he belonged?"

How soon they forget. Does anyone remember when Samuel Alito was nominated? He had written a memo in 1985 for the Reagan Justice Department that said Roe v. Wade was wrongly decided. I guess maybe Republicans conceded that this disqualified him?

Ooops, no. The archives (January 2006) of the Christian Science Monitor report:

For the past two months journalists and legal analysts have been poring over hundreds of Alito decisions issued during his 15 years as a judge on the Philadelphia-based Third US Circuit Court of Appeals. They have also examined memos and letters he wrote while working as a Justice Department lawyer during the Reagan administration. "I am particularly proud of my contribution in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion," Alito wrote in one letter.

In a 1985 memo, Alito made clear his legal judgment that the landmark abortion case, Roe v. Wade, should at some point be overturned. But he said in the memo that the 1985 case then before the high court was not the right time to push for it. Instead, he counseled his Reagan administration colleagues to urge the court to cut back on abortion protections.

Some Alito supporters have downplayed the papers, saying they were produced 20 years ago when Alito was a young lawyer, and not yet a judge. They urge senators to focus instead on Alito's work as an appeals court judge.

A later Christian Science Monitor story highlights how and why then-Judge Alito did not give more specifics about cases that might present potential constitutional issues:

"He is saying as little as he needs to be confirmed and hasn't made many mistakes that trouble a majority of senators whose votes he needs," says Carl Tobias, a professor at the University of Richmond Law School.

But unlike Chief Justice John Roberts, Mr. Alito did not default to refusing to answer a question because "the issue is likely to come before the Court," he adds. "He has tried to wade in and engage the questions. The answers aren't always as specific as the senators would like, but he can't go too far, either. He'd have to recuse himself."

Maybe Mr. Castor should bone up on constitutional law before he runs his mouth (or for office) in the future. But he probably won't take my advice. Oh well.

P.S.: The Pennsylvania ruling should be reversed by the Supreme Court.

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