"We're doing what the death penalty has always done historically, which is target minority people," one of the lawyers said in 1998 as he asked a Federal District Court judge to declare the penalty unconstitutional.

That judge was Sonia Sotomayor -- a Bronx-born woman of Puerto Rican descent who as a young lawyer had leveled much the same attack on capital punishment. And as she listened to the arguments that day, she acknowledged there were many unresolved "tensions" surrounding the death penalty.

But she flatly told the lawyers she had no power to resolve them. "I don't as a judge," she said. "They are not up to me. Ultimately, they are up to Congress and the Supreme Court."

Judge Sotomayor, of course, is now up for a seat on the Supreme Court, and her nomination has sparked questions about her early advocacy and whether that might flavor her performance as a justice.

The case record shows she was curious enough about the defense arguments that she ordered prosecutors to produce data on the race of defendants considered for the death penalty. But it also shows she was tough on defense lawyers, repeatedly challenging their claims that minority defendants were disproportionately singled out.

She even rejected the same kind of statistical argument against capital punishment that she had made years earlier as a lawyer, saying it was not sufficient to prove discrimination.

Well, that latter point is encouraging. As a maturing jurist, she certainly should have realized that the simplistic statistical argument in the memo she signed in her youth was nonsense, and this is an indication she indeed did.

The story also includes an indication that she realizes one of the basic, yet seldom appreciated, flaws in the "race-of-victim bias" claim:

At one point, pressed by defense lawyers to resolve the death penalty's inequities, she advised them to be careful what they wished for.

"As my law clerk said to me the other day, what is the remedy? Should we just have more people sentenced to capital punishment? That's as effective a remedy as having fewer people sentenced to capital punishment if we find that we need to remedy some overall societal inequity."

The race-of-victim bias claim is that murderers are sentenced to death less often when the victim is a racial minority, after controlling for relevant case characteristics. The claim is factually unfounded, because strength of the prosecution's case and the norms of the local jurisdiction are both relevant, legitimate characteristics, and the opposition's own studies show the "bias" disappears into the statistical grass when those are controlled. See this article. But even if the claim were valid, what would it mean? The norm is established in those cases where race is not a factor -- where the victim, perpetrator, and key decision makers are the same race. If minority-victim cases result in fewer death sentences compared to that norm, the answer is more death sentences in those cases. It does not mean that anyone presently on death row does not deserve his sentence. Does the quote above mean that Judge Sotomayor is one of the few people who understands that?

We have insufficient information to make a judgment. Let us hope that the Senate Judiciary Committee probes deeply on this issue.