Losing by Winning

by digby

I’ve been as much of a defender of Sotomayor’s nomination as anyone, particularly in light of the vicious attacks right out of the box from Boss Limbaugh and the boyz. But as I watch this unfold, I realize that we all may have been played a little bit by the right wing into reacting in a way that benefits them as much as ourselves. Or, perhaps we simply failed once again to see how our defenses were actually advancing conservative values.

I first got an inkling of this when I saw liberals coming out of the woodwork to defend Sotomayor by pointing out that she had actually ruled against discrimination claims 86 out of 96 times. I understand that reaction, but it’s actually counterproductive to the larger argument about discrimination. It validates the assumption that discrimination claims are mostly bogus and that even “wise Latina” liberals like Sonya Sotomayor agree. Now, maybe that’s true in terms of the cases she heard and ruled on, but it’s not useful for liberals to be in a position of saying that the mark of a good judge is one who rules against discrimination claims.

And now we have this story in the NY Times which will probably do her a world of good. Unfortunately:

Imprisoned at the age of 16 for the killing of a high school classmate, Mr. Deskovic, now 35, filed a habeas corpus petition in 1997 in Federal District Court contesting his conviction. The court denied the request because the paperwork had arrived four days late. Mr. Deskovic and one of his lawyers — who he said had been misinformed about the deadline for filing — appealed the decision to the federal appellate court on which Ms. Sotomayor sat.

Ms. Sotomayor, along with the other judge on the panel, ruled that the lawyer’s mistake did not “rise to the level of an extraordinary circumstance” that would compel them to forgive the delay. There was no need to look at the evidence that Mr. Deskovic insisted would affirm his innocence, they said.

Mr. Deskovic spent six more years behind bars, until DNA found in the victim not only cleared him, but connected another man to the crime.

Habeas corpus petitions are rarely granted, and Mr. Deskovic knew that all along. Federal judges routinely deny them, including for purely procedural reasons. But he listened as President Obama, in seeking a new Supreme Court justice, talked about how he wanted a judge with not only great intellect, but also great empathy, a judge who knew how the real world worked and who could apply some common sense.

And so Mr. Deskovic is angry. All over again.

“When we filed the appeal, I thought for sure that she and the other judge were going to see the facts of the case, that this wasn’t an error of my doing and that upholding a ruling like that would be a miscarriage of justice,” Mr. Deskovic said.

I have no idea about the merits of the case or the underlying details. It’s entirely possible that Sotomayor was just following the law and did the right thing. But I am uncomfortable that this case, like the discrimination statistics, will undoubtedly be used to defend her from charges of being too liberal and will help her get confirmed. This is not an argument I want to make.

Someday we’re going to have to make the argument that justice is as important as being tough and unyielding. The balance is way out of whack in our culture.

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