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Sotomayor on Melendez-Diaz

Admittedly, I’m a little worked up about Melendez-Diaz. It’s a pretty exciting decision.

What’s worrisome, of course, is that the Supreme Court has the power to change it. Melendez-Diaz was a 5-4 decision, and Justice Souter was in the majority. Which means that if a Justice Sotomayor thinks that it was wrongly decided, it could be gone tomorrow.

There is reason to think Justice Sotomayor will not be great for criminal defendants and their lawyers in general. As a biographical matter, she’s a former prosecutor, and former prosecutors tend to look at the world a little differently than criminal defense lawyers do.

More significantly, there is reason to think that her prior opinions are not exactly defendant-friendly. That said, maybe her biography means things will be a little more nuanced.

But, happily, someone asked her about Melendez-Diaz in her confirmation hearings!

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The Senior Senator from Minnesota asked Judge Sotomayor about Melendez-Diaz at her confirmation hearing. Mentioning that she, herself, would have been annoyed to do more work as a prosecutor, Senator Klobuchar asked Judge Sotomayer what she thought of the case. The soon-to-be-Justice answered:

I was a former prosecutor. And it’s difficult proving cases as it is. Calling more witnesses adds some burdens to the process. But, at the end, that case is a decided case. And so its holding now is its holding, and that’s what guides the court in the future on similar issues to the extent there can be some. As I said, I do recognize that there can be problems, as a former prosecutor, but that also can’t compel a result.

It’s hard to know exactly what that means. On one hand, maybe she’s saying that she’s going to respect stare decisis, and we’ll get to litigate Melendez-Diaz for the rest of my natural life, including each word of dicta.

On the other hand, maybe by starting off with the observation that she was a former prosecutor, Judge Sotomayor is letting us know how she’ll first think about the issues in the case, and come to the prior precedent through that lens. [though perhaps I’m reading this a little more like a Republican Senator leaning too much of the “wise Latina” remark]

The trick is what she means when she says that Melendez-Diaz will “guide” the Court in the future. I suspect that Judge Sotomayor’s presence on the High Court will mean that this line of cases will, at least, not bloom as fully as some (like me) might have hoped.

[Note – Does anyone know if Senator Klobuchar actually ever tried a case? I’m not saying it’s a big deal, but it looks in her public statements like she refers to herself as a former prosecutor a lot, and it looked from her bio like she was mainly the head political official in her office. Normally I don’t think of that as a job that involves a lot of jury time. Though I’m sure Melendez-Diaz has some effect on the paperwork involved at the top levels of a prosecutor’s office.]