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Hope for Sotomayor


Justice Sotomayor joined the Court's 6-3 majority today in Barber v. Thomas, upholding the Bureau of Prisons' method of computing good time credits.  The Bureau uses the actual time the defendant has been in jail; the defendant had wanted the computation based on the inevitably longer period to which he was sentenced.

The case is not a blockbuster, although it is marginally significant for the roughly 200,000 federal inmates.  The principal significance for the rest of us is that Justice Sotomayor voted for the government in a case where an "empathy"-driven judge (see, e.g., Justice Kennedy and his sentiment-laden writings in Graham, Roper and Kennedy v. Lousiana) could easily have gone the other way.

Unsurprisingly, Sotomayor voted as Justice Souter surely would have in Graham.  But today's case is different.  It is difficult to believe that Souter  --  ever looking to eke out a way to boost criminal defendants  --  would have voted with today's majority.  This is the frist criminal case in which I am certain that Sotomayor cast a more "consevative" vote than Souter would have.

Ladies and gentemen, there may yet be hope.


She thinks murderers in prison should have the franchise. There is no hope for her. That she is to the right of Souter every once in a while is nice, but ultimately, she's in the liberal bloc--always will be.

For those of us still smarting 20 years later about what a disaster Souter turned out to be, ANYTHING not named "William Brennan" looks better.

I agree that Sotomayor is almost surely a lost cause in any big case. But so was Souter. The question is not whether Sotomayor is any good; the realistic question is whether she might be slightly less ideological than he was. A vote like today's disheartens and frustrates the defense bar, and I am a man who enjoys small victories.

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