One caveat is worth noting about Judge Sotomayor's AEDPA cases. None of them are capital. Of the three states of the Second Circuit, Vermont has not had the death penalty for decades, and no capital case from Connecticut or New York ever reached the Second Circuit in the normal course of reviews. Some judges can be perfectly reasonable in noncapital cases and go berserk when the death penalty is involved.

The most important opinion may well be the first, written while Judge Sotomayor was on the District Court. It was when the statute was new and major questions needed to be resolved that we saw the fault lines most clearly. In Rodriguez v. Artuz, 990 F. Supp. 275 (1998), she parted company with SDNY colleague Judge Sweet and held that the new statute of limitations was not a violation of the Suspension Clause. The vast majority of courts so held, and Sweet was an outlier, but the opinion is a thorough and thoughtful examination of the subject. The only hedge is the possible cutting off of a claim of a person who is actually innocent. This is a theme we see repeated several times. She is concerned about that possibility, but in each case the petitioner is not innocent, so no firm decision on that aspect is needed.

Throughout these opinions, I do not see the hostility to AEDPA that I have seen in so many opinions in the lower federal courts. The statute is largely applied as written and as intended.

One area where Judge Sotomayor does seem to stretch is when claims of racial discrimination in jury selection under Batson v. Kentucky are involved. In Galarza v. Keane, 252 F. 3d 630 (2001), one of the few decisions with a dissent, she finds the claim not defaulted. In Green v. Travis, 414 F. 3d 288 (2005), she stretches the "unreasonable determination of the facts" exception of 28 U.S.C. §2254(d)(2) in order to avoid deferring to the state court, but then goes on to reject the claim on the merits.

Loliscio v. Goord, 263 F. 3d 178 (2001) applies the most controversial part of AEDPA, the so-called "deference" standard, without the grousing or evasion we so often see. She notes that a pre-AEPDA Second Circuit precedent is not binding on state courts and therefore not necessarily controlling in post-AEDPA federal habeas. That conclusion is correct and seemingly obvious, but there has been resistance to it.

Another case from the District Court years, with an interesting federalism overtone, is United States v. Fetzenberg, an unpublished federal prisoner case. After tossing out as untimely a number of state prisoner petitions on the ragged edge, she allowed one by a federal prisoner. She noted that in a federal prisoner case, no court had previously heard the claim, which weighs in favor of bending the rules to hear it, whereas in a state prisoner case there has already been a review in state court. That seems like common sense, yet too many federal judges have such disdain for state courts that they consider re-reviewing already reviewed state cases more important than reviewing their own.

On the whole, these are well-considered, well-written opinions that apply the language of the statute and the precedents of higher courts, easily within the limits in which reasonable people may differ. The big question mark, as I noted earlier, is capital cases. That is a topic that should be explored in the confirmation process, and we will have more to say on it in this blog shortly.