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.