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Did Sotomayor Tip Her Hand on the Sixth Amendment?

By John Tabin on 7.15.09 @ 3:44PM

Contrary to my expectations, Sotomayor actually was asked today about the Confrontation Clause case I wrote about a couple weeks ago. Amy Klobuchar, the Minnesota senator who we can be certain never did coke with Chris Farley, expressed her concern as a former prosecutor with Melendez-Diaz v. Massachusetts and asked for Sotmayor's thoughts. Here's how she answered:

It's always difficult to deal with people's disappointments about cases, particularly when they have personal experiences and have their own sense of the impact of a case.

I was a former prosecutor. And it's difficult proving cases as it is. Calling more witnesses adds some burdens to the process.

But, at the end, that case is a decided case. And so its holding now is its holding, and that's what guides the court in the future on similar issues to the extent there can be some.

As I said, I do recognize that there can be problems, as a former prosecutor, but that also can't compel a result. And all of those issues have to be looked at in the context of the court's evaluation of the case and the judge's view of what the law permits and doesn't permit.

Souter was in the majority in Melendez-Diaz, which was decided 5-4. It's hard to be sure based on her vague phrasing, but if Sotomayor means to suggest that she wouldn't vote to overturn Melendez-Diaz, that's a big deal -- the Court will revisit the issue of the Sixth Amendment right to confront forensic analysts next term.