News Cut: July 15, 2009 Archive

Klobuchar questions Sotomayor

Posted at 11:11 AM on July 15, 2009 by Bob Collins
Filed under: Crime and Justice

Sen. Amy Klobuchar got her chance to question Supreme Court nominee Sonia Sotomayor late this morning.

Here's the short version.

Q: You were quoted in the New York Times and said "the one thing I've found is if you come into the criminal justice system on a prosecutorial level thinking you can change the ills of society, you're going to be disappointed." Elaborate.

A: By the time a criminal defendant ends up in court, they've been shaped by their lives. If you want to give people the best opportunity in life, it has to be early childhood forward. If you're waiting to do that when they're before a judge in court, your chances of success are diminished.

Q: Explain role of prosecutor vs. judge.

A: My role (as a prosecutor) was to prosecute on behalf of the people of New York. The role is different than if I were a defense attorney. We cannot remedy the ills of society in a courtroom. We can only apply the law based on the facts before us.

Q: Give a specific case of a tough choice you had to make as a prosecutor.

A: I was influenced by a TV show in igniting the passion of being a prosecutor. It was Perry Mason. His story line is in all of the cases he tried -- except one -- he proved his client innocent and got the actual murderer to confess. In one episode, Perry Mason -- with the character who played the prosecutor -- met up and Perry said "it must cause you some pain having expended all of that effort to have the charges dismissed." And the prosecutor looked up and said, "no, my job as a prosecutor is to do justice. And justice is served when a guilty man is convicted and an innocent man is not." I thought to myself, "that's quite amazing."

I had one case with an individual who was charged with committing a larceny from a woman. His defense attorney said 'this kid is innocent. Please look at his background. He's a kid with a disability. Look at his life.' Everything he said was true. I talked to the victim and I had not spoken to her when the case was indicted. I let her tell me the story and it turned out she had never seen who took her pocketbook. In that case, she saw a young man that the police had stopped in a subway station with a black jacket and she thought she had seen a black jacket."

Q: Talk about U.S. vs. Falso (child porn case)

A: There has been two cases about how much information a warrant needs when the subject is child pornography on a home computer. I joined the part of the opinion that the Constitution had been violated. Then I looked at what the principles are for unreasonable search and seizure and what doctrine it underlays is you don't want the police violating your Constitutional rights without cause. I had to look at whether we should make the police responsible for the judge's error.

Q: You made a similar finding in U.S. v. Santa when the court made a clerical error. Someone had been arrested. They found cocaine and you allowed that in.

A: An issue the Supreme Court addressed just this term... I came out the way the Supreme Court did.

Q: A story a few weeks ago said you've been tenacious about you and you were criticized for spending too much time on facts, which I thought was unique. Talk about why that's important.

A: Facts are the basis for the legal decision. A judge deals with a particular legal setting and the fact. To the extent there's criticism that I do that, we're not fact-finders, but we have to be sure we understand the facts of the case so we know what legal principle we're applying it to. A judge's job is not to answer a hypothetical case; it's to answer the case that exists.

Q: A report issued last week -- Transactional Records Clearing House -- found you sent more people to prison when you were a district court judge. You were twice as likely to send white-collar criminals to case. I found those to be challenging when I was a prosecutor -- they were pilots, we had a judge. Talk about your view of sentencing of white-collar defendants.

A: When I was a district court judge, the number of victims wasn't considered. Those are factors one should consider. May of the white-collar sentences you were talking about were focused on looking at the guidelines and insuring that I was considering -- as the sentencing statute requires -- all of the circumstances of the crime.

In all my cases, I balanced the individual cases with the interests society sought to protect and I applied it evenhandedly to all cases. It's important to remember the guidelines were mandatory.

Q: What do you think about their not being mandatory guidelines now?

A: They're still staying within the guidelines because they were a good starting point.

Q: Did you have a chance to watch the All Star Game last night? Most of America didn't watch the replay of your hearing.

A: I haven't seen television for a very long time, but I'll admit I turned it on a little bit.

Q: Your Yankee -- Derek Jeter -- scored only because there was a hit by our Joe Mauer.

A: Teamwork.

Afterwards, Sen. Klobuchar talked with MPR's Gary Eichten:

Five cases that changed life in Minnesota

Posted at 1:18 PM on July 15, 2009 by Bob Collins (2 Comments)
Filed under: Crime and Justice

A writer to the newsroom complained today that there isn't enough context in the coverage of the Sotomayor hearings; not enough examples of how the Supreme Court affects the lives of Minnesotans.

Given that the Court rules on constitutional issues, it's fair to say that every decision has something to do with every Minnesotan, but here are five facts about life in Minnesota, shaped by the Supreme Court in recent decades.

1) Your kid doesn't need your permission to get an abortion

The Legislature passed a law requiring both parents to agree to an abortion for a minor, ignoring that about half the kids in the state only lived with one parent. A Minneapolis gynecologist -- Jane Hodgson -- challenged the law. The Supreme Court affirmed a lower court ruling that the two-parent notification is unconstitutional. The case was decided by just one vote.

2)Native Americans can fish for walleye on Lake Mille Lacs despite state-imposed restrictions.

This was one of the most emotional issues in the early '90s in Minnesota. Walleye were disappearing from Lake Mille Lacs and the Minnesota Department of Natural Resources imposed restrictions. But the tribe sued in 1990 claiming the U.S. conveyed hunting and fishing rights to the tribe in 1837. The court agreed (MINNESOTA et al. v. MILLE LACS BAND OF CHIPPEWA INDIANS et al.). The restrictions were imposed only on non-Native Americans. The walleye came back. The case was decided by just one vote.

3) You can publish whatever you want. You can't be censored.

The 1st Amendment got one of its biggest boosts, thanks to Jay M. Near, an "anti-Catholic, anti-Semitic, anti-black and anti-labor" publisher of theThe Saturday Press in Minneapolis. He contended a Jew was the biggest gangster in Minneapolis and the cops weren't doing anything about it. The Minnesota Gag Law was used to make it a crime to publish or even work for a publication that was "malicious, scandalous and defamatory."

It's considered the first great censorship case before the Supreme Court, which killed censorship.

4) You can ask a candidate running for judge in Minnesota the same kind of questions the Senate Judiciary Committee is asking Judge Sotomayor.

This is a fairly recent case. The Minnesota Supreme Court's canon of judicial conduct prohibits a candidate from announcing his or her views on disputed legal or political issues. Greg Wersal ran for office in 1998 and then filed suit against the standards, claiming it violated the First Amendment. The Supreme Court agreed in a 2002 decision. The issue was decided by a single vote.

5) Social organizations can't exclude you because you're a woman.

It wasn't long ago -- the '80s -- that associations like the Jaycees -- refused to allow women to join. Two Minnesota chapters bucked the national association and let the women in. They were sanctioned by the national organization, which sued Kathryn Roberts of the Minnesota Department of Human Rights, who was responsible for enforcing the Minnesota anti-discrimination law. In a unanimous ruling, the court said "making women full members would not impose any serious burdens on the male members' freedom of expressive association." After that decision, the era of the men-only club ended.

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Franken questions Sotomayor

Posted at 1:36 PM on July 15, 2009 by Bob Collins (9 Comments)
Filed under: Crime and Justice

As he told Cathy Wurzer this morning, Al Franken went with the net neutrality issue when he got a chance to question Sonia Sotomayor at the Senate Judiciary Committee today.

Here's the running short version of the exchange:

Q: The Brand X decision deregulated Internet access services allowing private companies to regulate access to the Internet. We've already seen examples of these companies blocking access to the Internet. Companies can slow down competing information and speed up their on. This is frightening. Internet connections use public resources. Doesn't the American public have a compelling First Amendment interest in ensuring that this doesn't happen?

A: Sotomayor gives Franken a lesson on whose job it is to ensure net neutrality.

"The role of the court is not to make the policy but to wait until Congress acts. Brand X was a question of which government agency would regulate those providers. The court determined it fit in one box, not the other."

"The question wasn't regulation vs. non-regulation; it was which set of regulations. We're talking about statutory regulation and Congress' ability to amend the statute if it chooses. This is not to say the Internet is not important."

Q: Isn't there a compelling First Amendment right for Americans to have access to the Internet?

A: Rights are not looked at as overriding. Rights are rights and what the courts look at is how Congress balances those rights in a particular situation.

Q: There's an impoverishment of our political discourse when it comes to the judiciary. It's very often reduced to 'I don't want an activist judge. I don't want a judge who's going to legislate.' What is your definition of judicial activism.

A: It's not a term I use. I don't describe the work I do in that way. We all go through the process of reasoning out cases in accordance with the principles of law. People think of activism as the wrong conclusion in light of policy; but hopefully judges... are not imposing policy choices or their views of the world... that would be judicial activism.

Q: It's almost the only phrase that's ever used. I want to ask you about a few cases. Congress used power in the 15th Amendment when it passed the Voting Rights Act of 1965. The courts should pay greater deference to Congress. Is that your view? (He's referring to this case)

A: I've not made a prejudgment. The ABA rules says no judge should make comments about an impending case.

Q: Gross v. FBL Financial Services (I wrote about this one here). This is a big deal. When you go to court to defend your rights, you have to know which rights you're defending. ( I'm not really sure what Franken is trying to say here; the decision shifted the burden of proof in age discrimination suits to the employee)

A: I'm less familiar with this case. (I think Sotomayer was trying to let the senator down gently)

Q: Yesterday a member asked you if abortion appears in the Constitution. Are the words "birth control" in the Constitution.

A: No.

Q: Are the words privacy in the Constitution.

A: The word privacy is not.

Q: So you believe the Constitution contains a fundamental right to privacy.

A: It conveys certain rights that extend to the right of privacy in certain situations. Parents have the right to regulate the education of their children.

Q: So the fact it doesn't appear in the Constitution isn't really relevant, is it?

A: The Constitution is written in broad terms and the court interprets how it relates to an individual situation.

Q: The right to privacy included whether an individual has the right to abortion. Do you believe that this right to privacy includes the right to have an abortion?

A: The Court has said that there is a right to privacy that women have with respect to the termination of their pregnancy in certain situations.

Q: What was the one case in Perry Mason that Burger won?

A: I don't remember.

Q: Didn't the White House prepare you?

A: I was spending a lot of time reviewing cases.

(Bob notes: It was the 185th episode. The Case of The Deadly Verdict", first aired on October 17, 1963.

According to IMDb:

Although it's popularly believed this episode represents the only time Perry Mason loses a case, in the first-season episode "The Case of the Terrified Typist", not only is Mason's client convicted of murder - he turns out to be really guilty! (However, Mason figures out that the murderer was impersonating someone else, and since some of the prosecution's evidence was related to the actual person whose identity had been stolen, a mistrial is declared, meaning a second trial for the defendant, presumably without Mason's services.) In the sixth-season closer, "The Case of the Witless Witness", a respected judge rules against Mason in some civil matter; when the judge ends up falsely accused of corruption, then murder, Mason doesn't hesitate to defend him.

Other online experts claim he lost three times. The jury is still out on this, however.

Franken struggled in his first public exchange with a Senate witness. He didn't exactly do a Bobby Jindahl, but it wasn't real pretty. Grade: C- Update 3:50 p.m.

THE REVIEWS

John Dickerson on Slate:

He's had to be serious almost since he announced he was running for the Senate. Then, after finally being sworn in, he's had to show that he didn't come to just tell jokes. On the day he met his Democratic colleagues for their weekly lunch, Sen. Chuck Schumer emerged from the meeting and reiterated several times that there were no jokes told. (In fairness to Schumer, he had to repeat because reporters kept asking: Were there any jokes?) During Franken's opening statement, the most popular comment (at least judging from my inbox and Twitter feed) was something along the lines of, "This Saturday Night Live skit isn't very funny." Now that he's finally made a quip, we can all stop waiting for him to be funny.

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