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:
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