pageok
pageok
pageok
Judge Sotomayor & Race Cases:

Judge Sotomayor's participation in Ricci v. DeStefano (the New Haven firefighters case), and her "wise Latina justice" speech have fueled speculation about her approach to cases involving race. To address such concerns, SCOTUSBlog's Tom Goldstein reviewed all of the cases involving race in which she participated on the Second Circuit. His conclusion:

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. . . . Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

This review is worthwhile, and certainly shows Sotomayor has been a relatively mainstream judge on racial issues during her time on the Second Circuit. But does it show more than that? Goldstein's SCOTUSBlog colleague, David Stras, comments:

This is an extremely comprehensive study and I do think it is probative of her jurisprudence, but I disagree with Tom that it shows that it is "absurd to say that Judge Sotomayor allows race to infect her decisionmaking." The statistics that Tom describes are essentially descriptive, similar to the type of information you would get if you were to run the mean, median, range, standard deviation of a statistical sample. While I tell the Ph.D. students that I supervise on dissertation committees that descriptive statistics are extremely helpful, they can only accomplish so much. In this case, we know that when Judge Sotomayor was on a panel of the Second Circuit, the panel upheld a claim of discrimination about 10% of the time. (It would also be helpful to know how Tom defined a "race-related" case, which is certainly subject to reasonable disagreement.) To the average observer (including me), this statistic does not seem to be out of the mainstream, but the only way to know for sure is if we compare her dispositions to the disposition rates of other judges, both within and beyond her circuit. For instance, it is possible that claims of discrimination are upheld at a rate of only 5% by the average circuit judge in the federal judiciary, in which there could be an argument that Judge Sotomayor tends to uphold claims of discrimination, on average, twice as often as her colleagues. (By the way, I certainly do not expect Tom to conduct this type of inquiry as this is the type of paper that can take an academic a year or more to produce.) What is more helpful is to actually read those opinions, as Tom suggests in another post. If the opinions that Tom read are correct on the law, then there really cannot be even a credible argument that Sotomayor is somehow biased in cases involving race.

I agree with Stras' qualifications and critique — I raised similar concerns to Tom Goldstein directly. This is not to say there is anything problematic in her record in these cases, just that a descriptive review of the cases can only show so much. Furthermore, insofar as the review excludes some cases, such as the en banc review of Hayden v. Pataki, a Voting Rights Act challenge to felon disenfranchisement in which Judge Sotomayor dissented (see here), it may present an incomplete picture.

Another en banc race-related case omitted from Tom Goldstein's review is Brown v. City of Oneonta, in which Judge Sotomayor dissented from the denial of rehearing en banc. It's an interesting case, which I may blog on later. Ed Whelan has a comment on the case here.

Floridan:
Speaking of bias . . .
6.1.2009 10:34pm
loki13 (mail):
A punditocracy created-smoke desperately in search of a fire.

I can see the question at her confirmation hearing- "Judge Sotomayor, when did you stop being a racist?"
6.1.2009 10:36pm
ll (mail):

just that a descriptive review of the cases can only show so much.


Another part to consider is that the actions available to a judge on a subordinate court, which is subject to review and reversal, and criticism, by en banc or higher courts are not as wide ranging as the actions available to a judge on the highest court, which, looking at it realistically, does not answer to anyone.

A Circuit Judge must follow precedent, a Supreme Court justice makes it.
6.1.2009 10:50pm
Suzy (mail):
If there is "nothing problematic in her record in these cases", then why are we bringing it up again? And if there's something concerning about Hayden, why aren't we showing the evidence of that?

Would I rather have another Justice O'Connor than a Justice Sotomayor? From what I know so far, yes! However, these tactics are an embarrassment and are damaging the right. Is this wise?
6.1.2009 10:51pm
Terrivus:
Where were Goldstein's normative analyses when questions were raised about then-Judges Roberts and Alito?

He must have been too busy getting DIG'd back then... oh wait, nothing's changed.
6.1.2009 10:58pm
frankcross (mail):
I find this a bit frustrating. The criticisms of the analysis are potentially very valid. But they seem to play the bogus game of burden shifting and burden raising. Goldstein does not conclusively disprove anything. But where is the contrary evidence? No study, even a more sophisticated one, resolves a question. But when you have a study presenting reasonable evidence for one side of a position, I think it is incumbent to refute it with evidence, not mere arguments that the study is imperfect. If other judges have a 5% rate, prove it, don't assert its possibility.
6.1.2009 11:05pm
Jim Copland (www):
So I guess Goldstein would disagree with this statement by President Obama?

"[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult."
6.1.2009 11:12pm
ll (mail):
In reading the Goldstein piece, I am not sure I see what relevance it has to anything.

From his description, almost all the cases were decided on procedural grounds, very few involved decisions as to whether there was or was not discrimination. For example:


In the one divided panel opinion, the dissent's point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case.



she dissented from the affirmance of the district court's order appointing a guardian for the plaintiff


Perhaps I am missing something, but it appears to me that he doesn't quite prove what he wants to be proving.


In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times.


It appears to me that is wide agreement on procedural things, not wide agreement on substantive things.


Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.


Given his article, it seems to me absurd to conclude that she does not allow race to infect her decisionmaking. At best, there is insufficient substantive evidence to conclude anything.
6.1.2009 11:21pm
Cornellian (mail):
I seem to recall that discrimination complaints succeed at trial less than 10% of the time, but of course that doesn't tell you what their chances of success are in appellate courts, which is the real measure of comparison for a circuit judge.
6.1.2009 11:26pm
DavidStras (mail):
Frank,

You have a valid point, but the excerpted part of the post needs to be read in the context of the greater post. My point was two-fold: (1) the previous paragraph pointed out that there are some cases out there (like Ricci) that may hurt Sotomayor because they could be read so as to cast doubt on her impartiality on race issues in the eyes of some; and (2) the data did not support the very strong claim made by Tom that it was absurd "to say that Judge Sotomayor allows race to infect her decisionmaking." It is probative of that conclusion, as I admit at the very beginning of that paragraph, but it does not support the claim. To make that stronger claim, we would need a stronger dataset, and even then, there may be no dataset or statistical analysis out there that permits that stronger claim to be made.

Really, the greater post was simply laying out what we can expect over the next two or three months. And my point is that I have not seen anything out there yet that lays to rest the criticism that Sotomayor is likely to face on Ricci and similar cases.

By the way, nothing in this analysis should take away from the fact that Tom has done a brilliant job in analyzing this nomination and bringing analysis of the nominee's jurisprudence to the readers of SCOTUSblog.
6.1.2009 11:31pm
RPT (mail):
Guilty until proven innocent beyond a reasonable doubt. As a Hispanic woman, she must be guilty of something.
6.1.2009 11:39pm
James Moylan (mail) (www):
I'm getting tired. Where in all of this are the valid and important debates of the day? Everything must and is squeezed through the lens of the partisan bicker - but hey, this seems to be the realpolitik of the American landscape.

In the bigger scheme of things your judges seem just as hemmed in by the nature of the interpretation debate as do ours here in Aus. Here we generally have codified statutory aids relating to allowable parameters of judgement (Acts Interpretation Acts at the federal and state levels). And so we enjoy a lively consideration of the role of the bench in determining 'policy'.

And so a different paradigm. Here out lawmakers are all cognizant that the judiciary must 'make' law, and so do their best to subvert the intent of the many by codifying of law in a very formal sense (even taking mens rea out of the equation in many instances, instead providing defences where the individual must demonstrate, on the balance of probabilities, that they were/are acting lawfully).

It may be argued that each system (Aus/US) has its flaws - but at least in the westminster/aus system we think about the reality that in an appellate division law will be discovered. We tend to think about mechanisms rather than engage in some mythical debate about whether or not judges make law.

And by the by Soto's opinions do appear sound. But are they wise? (I am genuinely ignorant and would ever hesitate to ever pass judgement on the mechanisms of law in another country, I ask out of interest. Is she middle of the road because that is right under the bell-curve, or is she smarter than the average appointee? ) Does she chart a course? At least in our system the jj are clear in their judgements to refine issues and label ratio and obiter. You fella's have wonderful open standing provisions (looks like a paradise) but then foul it up with this deliberate obfuscation about the wonder of the law (ie - that rationality and justice are not symmetrical i.e. precedent).
6.1.2009 11:45pm
Cato The Elder (mail):
Like the Hispanic guy Estrada. Guilty guilty guilty.
6.1.2009 11:45pm
zuch (mail) (www):
DavidStras:
[T]here are some cases out there (like Ricci) that may hurt Sotomayor because they could be read so as to cast doubt on her impartiality on race issues in the eyes of some....
Well, yes indeed. But when that group of people is mostly hard-core Federalist Society types and other assorted RWers, and they're inclined to turn that "could" into a "would", sometimes we ought to not worry too much about any suggested "hurt", and just let people be themselves and get on with business....

Cheers,
6.1.2009 11:54pm
Leo Marvin (mail):

If other judges have a 5% rate, prove it, don't assert its possibility.

And even if other judges do have a 5% rate, so what? Every case is different. Maybe a judge who "only" rejected 90% saw more compelling cases for discrimination than a judge who rejected 95%. When Goldstein says Sotomayor rejected 90%, he isn't relying on statistical precision. He's appealing to common sense. Any judge who rejects 9 out of 10 claims of discrimination is simply not the racist, or even merely racialist, with an extreme pro-plaintiff judicial agenda that the extreme right wing is making her out to be.

Does anyone doubt the four most liberal SCOTUS justices would side with a discrimination plaintiff more than twice as often as the four most conservative ones? Does anyone think Sotomayor shouldn't be expected to vote with the liberals? If the unstated subtext of the right wing accusations against Sotomayor is that the whole left wing of the Supreme Court is racist, well good luck with that.
6.1.2009 11:56pm
A. Zarkov (mail):
Goldstein writes:

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions.
In general appeals are hard to win because appellate panels usually bend over backwards not to reverse the trial judge. If most of the appeals in race-related cases come from the plaintiff, then I'm unimpressed by Sotomayor's rejection rate. In other words, we need more data.

Lawyers generally don't make very good statisticians.
6.2.2009 12:06am
A. Zarkov (mail):
"Everything must and is squeezed through the lens of the partisan bicker ..."

Tell that to the Borkers.
6.2.2009 12:08am
DangerMouse:
I can see the question at her confirmation hearing- "Judge Sotomayor, when did you stop being a racist?"

What kind of a question is that?

There's no evidence at all that she's stopped at it.
6.2.2009 12:24am
RPT (mail):
Re Estrada, if being a partner at Gibson Dunn is the punishment.....
6.2.2009 12:52am
Oren:

At best, there is insufficient substantive evidence to conclude anything.

I suppose you'd like to hold confirmation hearings after she's been on the high court for a while?
6.2.2009 1:32am
Jim Copland (www):

DavidStras:
[T]here are some cases out there (like Ricci) that may hurt Sotomayor because they could be read so as to cast doubt on her impartiality on race issues in the eyes of some....

Well, yes indeed. But when that group of people is mostly hard-core Federalist Society types and other assorted RWers, and they're inclined to turn that "could" into a "would", sometimes we ought to not worry too much about any suggested "hurt", and just let people be themselves and get on with business....

Cheers,

Of course, turning a "would" into a "could" is precisely what the U.S. Supreme Court unanimously accused Judge Sotomayor of doing in Knight v. Commissioner. Just sayin.
6.2.2009 7:21am
T Gracchus (mail):
Stras is wrong to claim that Goldstein's study "does not support" the conclusion that it is absurd to claim that race infects Sotomayer's decision-making. The study plainly does support Goldstein's position as it is evidence which supports the inference. The study makes Goldstein's conclusion more likely correct; it is consistent with the conclusion and supports an inference to the conclusion. I do not see how that can fail to support the conclusion. It does not prove the conclusion, but that is a rather different matter.
6.2.2009 8:44am
David M. Nieporent (www):
T Gracchus: that would be fine, if Goldstein's claim were that Sotomayor does not decide cases based on race. But his claim was that it was "absurd" to say that Sotomayor does. That's a much stronger claim, and evidence that X is true is not evidence that it's "absurd" to say that X is not true.
6.2.2009 8:53am
Force Majeure:

Does anyone doubt the four most liberal SCOTUS justices would side with a discrimination plaintiff more than twice as often as the four most conservative ones?

If the discrimination plaintiff happened to be white and male, like the Ricci plaintiffs, I would doubt it very much.


Does anyone think Sotomayor shouldn't be expected to vote with the liberals?

I expect that she will.


If the unstated subtext of the right wing accusations against Sotomayor is that the whole left wing of the Supreme Court is racist, well good luck with that.

If they apply the constitution, or any of the anti-discrimination statutes so as to permit invidious race discrimination against white people or invidious sex discrimination against males, why is that not racist?
6.2.2009 10:09am
Eric Rasmusen (mail) (www):
9 of the 10 of the cases favoring discrimination claims were unanimous. Goldstein doesn't say how many of the 78 rejections were unanimous. Suppose it was 70 of them-- 9/10. Then our estimate is 8 rejections that were split. If Judge Sotomayor disagreed with her colleagues in 4 cases, that means that half the time she was the dissenting judge, since these are 3-judge panels.

That leaves 5 cases in which Judge Sotomayor's vote would have mattered, in one of which it seems she favored a discrimination claim and in 4 of which she opposed one. Plus, there were 4 cases where her vote didn't matter, but she favored the discrimination claim anyway.


My conclusion is that the sample is too small to use statistics to draw any conclusion except that, like pretty much all judges, she was not willing to dissent when dissent would have no effect except to make her look extreme and unwilling to obey the law.
6.2.2009 10:38am
CJColucci:
I don't recall such demands for statistical rigor in the debates over the last few appointments. It's certainly possible that 96% agreement with colleagues and 90% failure to uphold a discrimination plaintiff's claim are somewhat out of line with other judges -- though how much more agreement than 96% could one reasonably expect and how many fewer plaintiffs than 10% could reasonably be expected to win? -- but unlikely on the face of it, and no one actually asserts, let alone tries to prove, that these numbers are out of line. Goldstein's study of a pretty large sample of cases showed absolutely no basis for suspicions about Sotomayor's record in discrimination cases, and I say this as someone who had a discrimination defendants' victory overturned in a Sotomayor opinion. While obviously not conclusive, the study is sufficiently robust to overcome speculation about whether other judges agree 98.3% of the time and hold for plaintiffs 9.1% of the time, and conspiracy theories about sinister reasons for failures to dissent. Of course, none of this matters. She's a Puerto Rican woman appointed by a Democrat, so she must be a reverse racist, record be damned.
6.2.2009 11:10am
ShelbyC:

...we know that when Judge Sotomayor was on a panel of the Second Circuit, the panel upheld a claim of discrimination about 10% of the time.


Wow. 90% of the discrimination cases were brought by white males, eh?
6.2.2009 11:54am
O. Hutchins (mail):

If there is "nothing problematic in her record in these cases", then why are we bringing it up again?



Because if it gets brought up often enough, people might believe it anyway?

Look, it's ok to admit you oppose her for policy reasons.
6.2.2009 12:15pm
jukeboxgrad (mail):
She's a Puerto Rican woman appointed by a Democrat, so she must be a reverse racist, record be damned.


It's somewhat worse than that. She's a Puerto Rican woman appointed by a black Democrat.
6.2.2009 12:39pm
ShelbyC:

It's somewhat worse than that. She's a Puerto Rican woman appointed by a black Democrat.


Must be, cuz Estrada sailed right through.
6.2.2009 1:10pm
Cliff (mail):
She IS a racist...and not even close to being qualified for the S/C.
While walking around today she suddenly stopped and they have called in the Dept of Homeland Secuirty to dig those 45 butt-kissing clerks of hers dug out of her rear.
Just one more case of a racist President picking another racist to a high post.
He better enjoy it. Even some of his "close" buds are starting to turn on him....AND HE KNOWS IT!!!
6.2.2009 3:55pm
josie (mail):
Goldstein clearly has an agenda, as shown by his sanitizing of Sotomayor's conduct in Ricci. He was turning Scotusblog into a FaceBook for Sotomayor before she was even named.
6.2.2009 4:14pm
Force Majeure:

Goldstein clearly has an agenda, as shown by his sanitizing of Sotomayor's conduct in Ricci. He was turning Scotusblog into a FaceBook for Sotomayor before she was even named.

The blog has truly been a good one and provides much useful info all year, but especially during the SCT's term. I think you're right, though, that lately Tom's been allowing his own political predilections to infiltrate the blog such that it's starting to have much more of a leftward tilt. I don't say that he hasn't got a right to do what he wants to do with his own blog, but I do think that many of the people who have read it frequently for the unbiased SCT info may well start to see it as more of a political blog that advances a particular point of view. To me, that would be a shame, and I'd say the same thing if Tom tilted right rather than left.
6.2.2009 4:32pm
Leo Marvin (mail):
Cliff,

Just one more case of a racist President picking another racist to a high post.

President? Last I heard, you had to be an American to be President. Stop using the lib media's talking points.
6.2.2009 6:36pm
b-rob (mail):
Anyone who compares Sotomayor, a 17 year veteran of the federal bench, to Miguel Estrada, a meely mouthed simp who, to my knowledge, has never judged a beauty contest, needs to explain the similarities there . . . other than a Spanish surname.

Obama picked an overqualified minority judge with a sterling academic record, experience in private practice as a litigator, and a background as a prosecutor. He put her out there and double-dog-dared the conservatives to be so stupid as to challenge her qualifications. The conservatives, of course, rose to the occasion instead of keeping their yaps shut as wisdom should have dictated.

Normal people look at Sotomayor and see that she is qualified, if not hyperqualified. Normal people look at a judge who REJECTS DISCRIMINATION CLAIMS at a 90% plus rate and note the lack of any actual evidence that she has let her minority background cloud her decision-making. Normal people have no problem with the concept that a woman judge can asks a tough question of a male appellate lawyer and not have to apologize because he does not have the stones to deal with his own weak argument. But conservatives are not normal, are they? So they berate her as a racist (when she looks pretty friggin pale to me), call her dumb as if Princeton is just handing out summa cum laude diplomas, and they comment on whether she will be deciding case while on the rag. And guess what, GOPers? Your minority party status just got a little smaller as you succeed in further alienating the sensible political middle.
6.2.2009 7:02pm
b-rob (mail):
Cliff,


Just one more case of a racist President picking another racist to a high post.



Since Sotomayor is a "racist" in your eyes, I am sure you would be more than happy to identify every act she has committed that shows her "racism." Spo have at it, Cliff. List away! We'll be waiting for the list, Cliff.
6.2.2009 7:05pm
jukeboxgrad (mail):
shelby:

Must be, cuz Estrada sailed right through.


Are the two situations really comparable? I see a few important differences. One is that the Dems didn't accuse Estrada of being a racist.

==================
Leo, that was very funny.
6.2.2009 7:15pm
ll (mail):

I suppose you'd like to hold confirmation hearings after she's been on the high court for a while?


Always nice to see a substantive response instead of a snarky one from a law professor.
6.2.2009 11:11pm
Leo Marvin (mail):

Leo, that was very funny.

Thanks. Just trying to encourage some new local talent. Orin keeps banning the best faster than we can bait them.
6.3.2009 9:25pm
jukeboxgrad (mail):
Orin keeps banning the best faster than we can bait them.


So true. That darn Orin.

Stop using the lib media's talking points.


One more thing about this. Rush used to say "drive-by media." Maybe he still does, sometimes. But I think he's mostly switched to this: "state-owned media." Just thought I'd mention that, as grist for the future satirical mill.

Speaking of brilliant satire, I wanted to tell you how much I appreciated this:

If some glitch in the Matrix happens to have dropped it into the wrong factual reality, that's a mistake for philosophers to ponder


I will often not speak up when I see something like that, because there's nothing more boring than a bunch of people patting each other on the back. (I also often specifically refrain from praising Orin, because praise from the likes of me will do nothing to make his life easier.) But at this point in this thread I think we pretty much have it to ourselves, so I figured this would be a good place to mention it.

Also just noticed a post of yours that made an especially important and much overlooked point, expressed with insight and clarity.

So thanks for making so many comments that I appreciate.
6.4.2009 4:36am
Ryan Waxx (mail):
Normal people look at a judge who REJECTS DISCRIMINATION CLAIMS at a 90% plus rate...


True. And it's also true that normal people understand neither statistics nor analyzing judicial decisions. The 90% stat is useful for one thing only: As a democrat talking point, hoping that no one notices that few judges indeed would be approving as much as 10% more of those appeals.

So 90% sounds good on Oprah and is vigorously defended by those who wish to silence any analysis deeper than an Oprah one. What else is new?
6.4.2009 11:04am
Leo Marvin (mail):
jbg,

Thanks. That's very kind and much appreciated. "Back at ya" goes without saying. Which is a good thing because if I had to give examples I'd hardly know where to start.
6.4.2009 9:01pm
Desiderius:
LM,

Maybe you could help him smooth some of the rough edges, you know, as a show of gratitude. I tried and failed miserably.
6.4.2009 10:29pm
jukeboxgrad (mail):
help him


I can't find it right now, but a while back a few people (including lm, I think) did offer some constructive criticism, which I gratefully accepted. It was in connection with my explicit use of words like "liar" when talking about certain people. The people who helped me convinced me it was in my best interest to not do that. So I mostly stopped doing it.

You don't remember? I think you may have been in the vicinity.
6.5.2009 11:38am
Leo Marvin (mail):

a few people (including lm, I think)

Yes.

which I gratefully accepted.

Yes.

So I mostly stopped doing it.

The change was unmistakable.

I think you may have been in the vicinity.

It may have been before Des' prior incarnation frequented VC. It was right around when Moneyrunner equated Mark Fields' call to investigate the torture memos with inciting pogroms and Jim Crowe lynch mobs. I remember because I found it ironic and funny that I'd give you that advice while criticizing Moneyrunner in maybe the most uncivil terms I've used on this site.
6.5.2009 9:50pm
jukeboxgrad (mail):
It was right around when Moneyrunner …


Yes, I do think it was last summer. But I still can't find it. Oh well.

But I did find pointers to you demolishing moneyrunner. In a very civil manner.

The change was unmistakable.


Thanks for noticing. I did make a very deliberate change.

Some readers may find it hard to believe that I used to be even more explicitly caustic. It's true!
6.6.2009 7:38am
Desiderius:
Guys,

I don't think the tattle-tale links play well. YMMV.

For what it's worth, I have noticed marked improvement on other matters.
6.6.2009 10:08pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.