Sotomayor, Race and the Death Penalty

The New York Times has a front-page story today on Supreme Court nominee Sonia Sotomayor's few public and official comments on the death penalty. They show a judge who is deeply concerned, on a personal level, about racial disparities in the administration of the death penalty. They also show a moderate judge who sticks to the precedent and won't go out of a limb to stand up for her personal beliefs.

“We’re doing what the death penalty has always done historically, which is target minority people,” one [a] lawyer 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.”

Sonia Sotomayor isn't an activist judge, she's a thoughtful, experienced moderate - just the type of pick one might expect from our thoughtful, moderate president. She has expressed some progressive views outside of the court, but on the bench she has stuck to the playbook, sometimes frustrating those who wished she'd reacha bit further. Now that she is nominated for the nation's highest court, she will likely follow the same path - sticking to safe, measured decisions based on the law of the land and influence, however slightly, by her personal experience and beliefs.

But as the world's momentum has continued to shift against the death penalty, and as a few U.S. states become more isolated as world execution leaders, ruling that the death penalty is cruel and unusual might not be an activist position. It might be common sense. We executed 37 people in 2008 (more than half of them black of Latino) while there were more than 15,000 murders. That sounds pretty unusual to me.