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.
Related Posts (on one page):
- Goldstein on Sotomayor and Race Cases (Again):
- Brown v. City of Oneonta:
- Judge Sotomayor & Race Cases:
I can see the question at her confirmation hearing- "Judge Sotomayor, when did you stop being a racist?"
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.
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?
He must have been too busy getting DIG'd back then... oh wait, nothing's changed.
"[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."
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:
Perhaps I am missing something, but it appears to me that he doesn't quite prove what he wants to be proving.
It appears to me that is wide agreement on procedural things, not wide agreement on substantive things.
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.
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.
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).
Cheers,
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.
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.
Tell that to the Borkers.
What kind of a question is that?
There's no evidence at all that she's stopped at it.
I suppose you'd like to hold confirmation hearings after she's been on the high court for a while?
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.
If the discrimination plaintiff happened to be white and male, like the Ricci plaintiffs, I would doubt it very much.
I expect that she will.
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?
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.
Wow. 90% of the discrimination cases were brought by white males, eh?
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.
It's somewhat worse than that. She's a Puerto Rican woman appointed by a black Democrat.
Must be, cuz Estrada sailed right through.
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!!!
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.
President? Last I heard, you had to be an American to be President. Stop using the lib media's talking points.
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.
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.
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.
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Leo, that was very funny.
Always nice to see a substantive response instead of a snarky one from a law professor.
Thanks. Just trying to encourage some new local talent. Orin keeps banning the best faster than we can bait them.
So true. That darn Orin.
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:
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.
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?
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.
Maybe you could help him smooth some of the rough edges, you know, as a show of gratitude. I tried and failed miserably.
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.
Yes.
Yes.
The change was unmistakable.
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.
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.
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!
I don't think the tattle-tale links play well. YMMV.
For what it's worth, I have noticed marked improvement on other matters.
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