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Monday, January 27, 2020

Sanders Wants More Supreme Court Justices Like Sotomayor. That's Not a Bad Idea.

By Damon Root - January 27, 2020 at 01:20PM

What sort of Supreme Court justices would Sen. Bernie Sanders (I–Vt.) nominate if he is elected president? Speaking recently to the editorial board of The New York Times, the Democratic hopeful offered a glimpse of his thinking.

"The promises that I've made so far is that I will never appoint anybody who was not 100 percent Roe v. Wade," Sanders said. He added that anyone he picks would have to be "prepared to stand up to the power of corporate interests."

Sanders was otherwise mostly mum on specifics. Would he ever release his own list of Supreme Court candidates, like Donald Trump did in 2016? "It's not a bad idea," Sanders acknowledged. But he's "got to win the nomination first."

Sanders has offered more specifics on other occasions. On Twitter, for example, Sanders once declared that he'd "like more justices like…Sonia Sotomayor."

That's not a bad idea, either. Sotomayor is the rare left-leaning justice who counts both progressives and libertarians among her admirers.

To be clear, Sotomayor is far from an ideal jurist. She's been particularly disappointing on the Fifth Amendment. But her record on the Fourth Amendment is admirable. During her 11 years on the Court, Sotomayor has distinguished herself as both a sharp critic of police and prosecutorial misconduct and a staunch defender of the right to be free from unreasonable searches and seizures.

Unlike her liberal colleague Justice Stephen Breyer, who routinely votes in deference to law enforcement, Sotomayor is skilled at dissecting the government's sickly rationales for patently unconstitutional police behavior.

Consider the 2015 oral arguments in Rodriguez v. United States. Sotomayor neatly sliced and diced the Justice Department lawyer after he insisted that the police should be granted broad leeway to use drug-sniffing dogs during traffic stops. "We can't keep bending the Fourth Amendment to the resources of law enforcement," Sotomayor observed. "What you're proposing," she informed the government lawyer, is an approach that's "purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper."

Similarly, in her 2016 dissent in Utah v. Strieff, Sotomayor slashed at her colleagues in the majority for holding that the Constitution did not prohibit law enforcement from using evidence obtained during an illegal traffic stop because the man who was stopped happened to be the subject of an outstanding traffic warrant.

"This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong," Sotomayor seethed in dissent. "If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant." As far as she was concerned, "the Fourth Amendment should prohibit, not permit, such [police] misconduct."

Bernie Sanders, the self-described socialist who has said nice things about bread lines and communist dictatorships, has embraced many truly bad ideas over the years. Nominating a few more justices like Sonia Sotomayor is not one of them.


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