Supreme Court nominee Sonia Sotomayor usually uses G-rated language to dispose of X-rated cases.
Which is too bad, strictly from an entertainment perspective. But a review of Judge Sotomayor's cases shows that in terms of judging pornography, she is pretty conventional. She has consistently upheld law enforcement, even though she has at times cautioned against government overreach.
In 2004, for instance, Sotomayor and a 2nd Circuit Court of Appeals panel upheld the Protection of Children Against Sexual Exploitation Act. A convicted gentleman named Mark A. Harris had challenged the 1977 law as overstepping the congressional powers granted under the Commerce Clause. Conservatives like to use this argument to restrict congressional authority.
Harris had originally pleaded guilty in 1998 to sodomizing two boys, both younger than 17, and to having a child pornography collection that a sheriff called "the largest pornography collection I have ever seen."
Judge Sotomayor concluded quickly that even locally produced child porn can enter the national market; snap, there goes the Commerce Clause challenge. Harris is now in the high-security U.S. Penitentiary McCreary in Kentucky, and is scheduled for release in the year 2040.
A much more substantive problem faced Sotomayor in the 2008 case United States v. Falso. A David J. Falso in 1987 had pleaded guilty to a misdemeanor charge involving a 7-year-old girl having, as the police report stated, "placed his hands inside the girl’s underwear and digitally penetrated her, and acknowledged to police that he may need counseling for latent problems." Jump ahead to 2005, when FBI agents searched Falso's home in Cortland, New York after finding his computer address on a web site allegedly devoted to child pornography. Noted Sotomayor:
"Falso admitted to, among other things, obtaining child pornography from the internet; engaging in sexual activity with females in other countries whom he believed to be between the ages of sixteen and eighteen; and having been convicted for sexually abusing a seven-year old girl."
Falso pleaded guilty to a 242-count indictment but nonetheless sought to exclude the evidence used in the case against him, in part on grounds that his 1987 conviction should not have been part of the search warrant justification. On this, Sotomayor agreed, declaring that "the sheer length of time that had elapsed renders Falso’s prior sex crime only marginally relevant, if at all." Besides, Sotomayor reasoned, the 1987 conviction didn't have anything to do with child pornography.
The upshot: Sotomayor concluded police lacked probable cause for the search of Falso's home. But then, as she has in other law enforcement cases, Sotomayor pivoted and sided with police on the core question. No one was being deliberately deceptive, she reasoned, and so a "good faith exception" would enable the damning evidence to be used.
Sotomayor's law-and-order conclusion in this case was not shared by all. Chief Judge Dennis Jacobs, in particular, attacked the affidavit as containing a "recklessly misleading, if not outright deliberately false, statement."
Falso is now in the medium-security Federal Correctional Institution Allenwood. He is 68 years old, and if he survives he is scheduled for release in 2031.
