Friday, June 19, 2009

Judge Sotomayor Trying to Keep a Low Profile

On Wednesday, the U.S. Court of Appeals for the 2d Circuit issued an order denying rehearing en banc in United States v. Fell. Fell was convicted and sentenced to death for murder. He actually killed three people (including his own mother) but two of the murders occurred in Vermont, and were thus purely state law matters. The third murder involved the transportation of his victim across state lines (from Vermont to New York), which made Fell eligible for federal prosecution and the federal death penalty. A 3-judge panel affirmed his conviction last year. Absent intervention by the Supreme Court, Wednesday's ruling likely clears the way for Fell's execution--the first for a federal death penalty in the 2d Circuit in decades.

Judge Calabresi wrote a dissent from the denial of en banc reconsideration, in which he argued (among other things) that federalism issues arising out of the fact that Vermont---where the trial occurred---has no state death penalty, warranted en banc review. A footnote indicates that Judge Straub agreed with Judge Calabresi, but couldn't formally join his dissent because he took senior status after the argument. In response, Judge Raggi wrote a concurrence in the denial of review. Her concurrence was joined by Chief Judge Jacobs and Judges Cabranes, Parker, Wesley, and Livingston. A footnote indicates that Judge Walker, who was a member of the 3-judge panel but is senior, agrees. Judges Pooler and Sack each wrote separate short dissents. Judge Hall was recused.

Now let's do some counting. All active (i.e., non-senior) judges of the 2d Circuit participate in the decision whether to take a case en banc. Along with their votes in Fell, they are:

Jacobs: Concur
Calabresi: Dissent
Cabranes: Concur
Pooler: Dissent
Sack: Dissent
Sotomayor: ?
Katzmann: ?
Raggi: Concur
Wesley: Concur
Hall: Recused
Livingston: Concur

Note that only two (non-recused) judges did not go on record and one of them was Judge Sotomayor. What are we to make of that? We can't be sure how either Judge Sack or Sotomayor voted because the vote without them is 6-3. Even if they both voted for en banc review, the vote would have come out against it. However Judge Sotomayor voted, she may not have agreed with any of the separate opinions, and as there is no opinion for the court as a whole in a case denying en banc review, she did not feel the need to write her own separate opinion. I think this is probably a good explanation for Judge Katzmann's silence, but I want to raise another possibility for Judge Sotomayor.

For now, we can expect any heat directed at Judge Sotmayor's Supreme Court nomination to come from the right. Thus, if she had voted to deny review, she could have burnished her tough-on-crime credentials by saying so publicly, and the easiest way to do that would have been simply to join Judge Raggi's concurrence. But she didn't, which leads me to suspect that she voted to hear the case en banc. However, not wanting to give the right more ammunition, she then didn't join any of the written dissents.

This is, of course, all speculation, but the reticence displayed here by Judge Sotomayor shows, I think, the difficult position in which sitting judges are placed when nominated to the Supreme Court. During the period between nomination and confirmation, their decisions will be very closely scrutinized, and that fact could undermine the nominee's independence during that time.

The problem is substantially more widespread for federal district court judges. Although life tenure and salary protection are supposed to insulate such judges from political pressure, a fair number of federal appeals court judges are drawn from the district courts. E.g., Judge Sotomayor was a district court judge before being elevated to the 2d Circuit. The hope of a "promotion" from district to appeals court judge can lead a district judge to decide cases with an eye on how her decisions will play politically at her next confirmation hearing.

With that perspective in mind, it may show good judicial character that Judge Sotomayor did not record a vote in Fell. If she were simply interested in pandering to get confirmed, she could have easily voted to deny review and to join the Raggi concurrence. That she didn't suggests to me that she continues to vote her conscience, even at the potential cost of giving her opponents some basis for saying that she doesn't support the death penalty sufficiently.

Posted by Mike Dorf


ArtSilen said...

I think there would be a constitutional issue if neither New York nor Vermont had a death penalty statute. The commentary seems to imply that New York does in fact have a death penalty, albeit one that is not currently active. In other words, Fell's asportation of his victim from Vermont to New York triggered federal jurisdiction, and a death sentence that Fell might have gotten had he been tried in New York court. Other than the novelty of the case, I fail to see a constitutional issue, or even a matter on which Fell could legitimately complain. From a policy perspective, I can see some legitimate griping by those who would restrict federal jurisdiction to matters in which the federal government has a traditional interest, and garden-variety murder, regardless of how tantalizing the story might be, has traditionally been a state issue. No federal officials were involved, no specific federal interest was affected, and the Justice Department has better things to do with its time and money. On the other hand, New York and Vermont, each fiscally strapped, must be thrilled to pieces that Mr. Fell is off the streets, and that they did not have to pay to do it, well, at least not much, anyway. As for Judge Sotomayor, she does not have a dog in this fight; and she has been around long enough to know when to keep her peace on an issue in which she has no stake in the outcome. It is not as if she had decided similar cases differently in the past, and that this decision is going to come back on her later. We live in a day and age when any talking head who wants can get himself on cable TV or the Internet and make a fuss about whatever might be on his mind at the moment. Which is okay, if your comments are not about things for which you hold official responsibilities. Commentators, bloggers (like I am now doing) are free to say whatever they want, even if what they say reflects badly on their sanity, integrity, or common sense. More importantly, I give Judge Sotomayor a tip of my hat for her good sense not to say anything if she had nothing meaningful to add to the conversation, and where what she might have said in an uncautious moment could be held against her at some future time. It is not that she kept her mouth shut because she is aspiring to higher office; rather, she was selected for higher office at least partly on the basis that she exercises discretion in the way she communicates to others.

Michel J.Z. Mannheimer said...

See my article, When the Federal Death Penalty Is “Cruel and Unusual,” 74 U. CIN. L. REV. 819 (2006), in which I argue that it constitutes "cruel and unusual punishment" in violation of the Eighth Amendmant to apply the federal death penalty to a crime that occurred in any State that does not authorize capital punishment.

The status of the death penalty in New York is an interesting question. True, there is a death penalty statute "on the books," that the highest court of New York has held violates the state constitution. But the same can be said of Massachusetts (and perhaps some other States -- I'm not certain) which is certainly considered a "non-death" State. Given that the political winds have shifted in New York, I think it is quite properly characterized as a "non-death" State as well.

-- Mike Mannheimer

Michael C. Dorf said...

Because this is a federal death penalty case, rather than a habeas petition filed by a state prisoner, there need not be a constitutional issue for the appeals court to reverse. (That's technically true in habeas cases too, where the statute authorizes the writ for detention in violation of the "laws" of the U.S., but as a practical matter, a constitutional vioation is typically required.)

ArtSilen said...

Having arrived at the conversation somewhat late, I apparently missed some of the background. But, that said, the fact is that a federal trial jury convicted Mr. Fell of aggravated murder under the federal statute, and my original comment stands. Were I cynical, I might argue that the only injured party might be an ambitious New York State prosecutor who was unfairly deprived of an opportunity to argue a juicy death penalty case before a receptive appeals court, and thereafter leverage it toward a brighter, and presumably more lucrative career. Disclosure: I live about 30 miles from Folsom State Prison (yes, that one) where every so often they trot out Charlie Manson, he of the Tate-La Bianca Murders in 1969, whenever he has a parole hearing date, after which he disappears from view for another two or three years. For him, as probably for Mr. Fell, execution would be nearly universally applauded. But as those two miscreants represent a tiny minority of death row populations who are truly evil, we still have the problem of dealing with that vast majority of condemned prisoners, about whom our certainty of their guilt and absence of mitigating factors are unresolved. The formalities of trial, conviction and sentencing are almost irrelevant when it comes to weighing the social, economic, and indeed, psychic costs we collective bear in maintaining a procedure for inflicting lethal punishment that is bound to be manipulated and abused by all parties. In Massachusetts, where I lived for twenty years, a death sentence has not been carried out since 1947, and the fact that the state has gotten along quite well without one during those sixty-odd years is itself a decent argument that society can do without it. Here in California, we have a death row also well populated with people who most would agree truly deserve the fate this state has in store for them; the ugly fiscal consequences of doing this dance of death are another matter entirely. We would be doing ourselves a favor if we scotched the death penalty entirely; but at least from what I can see, both sides have a stake in keeping the dance going. Consequently, I am unable to muster much fervor in a constitutional doctrine that bootstraps an ofttimes sub rosa abstention from imposing a death sentence into an affirmative prohibition announced ex cathedra by a federal court. This was the problem with Roe v. Wade, and while the overall outcome of that decision has stood the test of time, the manner in which it was done has left a bad taste in everyone's mouth, and especially so as Bush-era justices on the Supreme Court have pushed their agenda to the maximum. Therefore, I would respectfully disagree about the cruel and unusual aspect of death penalty procedure; quite the contrary, the cruelty affects everyone concerned, including taxpayers; and the universality of the pain inflicted is a given. I would be willing to argue that a federal death penalty statute for homicide predicated on interstate transportation of the victim between states having no death penalty could be challenged under the Fifth Amendment's Due Process Clause, and under the 10th Amendment, as there is no meaningful nexus with a cognizable federal interest. Even the Mann Act was justified under Congress' power to regulate interstate commerce. Had this been a murder-for-hire case, it could be argued that some nebulous connection to commerce, a penumbra so to speak, exists, but the tendentiousness of the premises causes it to rapidly evanesce into sheer speculation.

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