The Washington Post has an interesting report on Judge Sotomayor today based upon a fairly extensive review of her opinions. Two aspects of the story caught my eye. First, the article suggests that there is a problem with teh high level of factual detail in Judge Sotomayor's legal opinions.
During nearly 11 years on the federal appeals court in New York, Sotomayor has made herself an expert on subjects ranging from the intricacies of automobile mechanisms to the homicide risks posed by the city's population density. Her writings have often offered a granular analysis of every piece of evidence in criminal trials, and sometimes read as if she were retrying cases from her chambers.This struck me because Judge Sotomayor's attention to detail is typically cited as a virtue, rather than as a fault. As one attorney quoted in the story noted, one would expect Judge Sotomayor to win praise for the thoroughness of her opinions.Legal experts said Sotomayor's rulings fall within the mainstream of those by Democratic-appointed judges. But some were critical of her style, saying it comes close to overstepping the traditional role of appellate judges, who give considerable deference to the judges and juries that observe testimony and are considered the primary finders of fact.
"It seems an odd use of judicial time, given the very heavy caseload in the 2nd Circuit, to spend endless hours delving into the minutiae of the record," said Arthur Hellman, a University of Pittsburgh law professor and an authority on federal courts.
The Post story also sought to offer an independent assessment of Judge Sotomayor's ideology based upon a review of opinions in which she differed with some or all of her colleagues on the Second Circuit.
To examine the record of Sotomayor, whose Senate confirmation hearings begin Monday, The Post reviewed all 46 of her cases in which the 2nd Circuit issued a divided ruling, nearly 900 pages of opinions. Although Sotomayor has heard about 3,000 cases, judicial scholars say split decisions provide the most revealing window into ideology because in such cases the law and precedent are often unclear, making them similar to cases heard by the Supreme Court. President Obama, who nominated Sotomayor to replace retiring Justice David H. Souter, has said Supreme Court justices will be in agreement 95 percent of the time.There's nothing particularly surprising in these results -- anyone who has reviewed a substantial portion of Judge Sotomayor's record know that she is likely to be on the liberal end of the spectrum on most issues that divide jurists along traditional ideological lines. Still, it is interesting (and heartening) that the Post sought to do its own analysis.Sotomayor's votes in split cases were compared with those of other judges through a database that tracks federal appellate decisions nationwide, a random sampling of 5,400 cases. The database codes decisions as "liberal" or "conservative" based on what its creator, University of South Carolina political scientist Donald Songer, says are common definitions. Votes in favor of a defendant, for example, are classified as liberal, while those supporting prosecutors are called conservative.
Sotomayor's votes came out liberal 59 percent of the time, compared with 52 percent for other judges who, like her, were appointed by Democratic presidents. Democratic appointees overall were 13 percent more liberal than Republican appointees, according to the database analysis.
I'd like to see the other "common definitions" for what's liberal and what's conservative.
Based solely on that one--Scalia has a fair number of very liberal decisions....
That's got to be the oversimplification of the century.
I suspect that Sotomayor has a mediocre mind and her excessive detail is a cover for this. I've seen this before. However without a thorough study of her decisions, which I'm unwilling to do, I really can't say this with confidence. So for me it's just a red flag.
Why do you suspect that she has a mediocre mind? I can understand your unwillingness to conduct a "thorough study" of her decisions, but how about an unthorough one? If you analyze one or two of them for us, you will improve your credibility.
Amen to that. Still, I'm pretty impressed with the article. Far, far more analytical and unbiased than I would have expected from WaPo these days. Note that the Post doesn't necessarily endorse Songer's methodology (and in fact an argument may be made that the post offers up both the methodology and Songer's name in an effort to distance itself from the obvious criticisms).
So Judge Sotomayor is a garden-variety, albeit detail-oriented liberal. She still ought be confirmed, and I say that despite the fact that I disagree with much of her reasoning and results.
How does your "mediocre mind" charge fit with her outstanding academic success?
I don't like her nomination for a variety of reasons, but "not smart enough" just isn't one of them. She's got more than enough intelligence to do the job, and you can look from her highly impressive educational accomplishments to her current opinions.
I don't know what to make of this Post story, as I will need to figure out what decisions they're basing this article on, and read them for myself. Every judge has quirks and their own style, and if hers is a tendency to rehash facts in unnecessary detail, that is interesting but hardly disqualifying. If it suggests she disregards the standard of review in cases resolved on the merits and worries more about the result being "right," that may be cause for concern-- or, depending on how you look at it, a refreshing dose of candor.
When I interviewed with the judge I ended up clerking for, he told me, "I'm a liberal. I will mess with a verdict; some of the other judges won't do that." I didn't fully understand him at the time, but I soon learned the norms judges apply, written and unwritten, in appellate review.
At any rate, on the SCT her job will be divining and proclaiming the law; she won't have time or the opportunity to scrutinize the application of law to fact, in all but a small fraction of her cases. Maybe she'll just be one of those with too much detail in her opinions, but her writing style can't be worse the Souter's.
Lastly, if she really is one to get deeply immersed in the facts of cases before her, that is yet more evidence that what she did in Ricci was an attempt to bury an inconvenient set of facts.
Certainly sounds like an oversimplification. However, it only counts split decisions, so we have to assume that these aren't the open-and-shut cases. Perhaps the liberal/conservative labels are worthwhile?
Except, oh yes, the numbers. She went 'liberal' 59% of the time, which I assume is 27 out of the 46 split-decision cases. With that sample size, you can't discard the null hypothesis (that the "true" population mean for her votes is 50%).
There is one useful bit of information in this "assessment". Democratic appointees were 52% liberal (and 48% conservative) overall, while Republican appointees were 13% more conservative. That either means Republican appointees were 39% liberal, or 45% liberal (they weren't clear on whether it was 52-13, or 52-(.13 * 52)). In either case, because of the sample size of 5,400, that puts the upper bound of a 95% confidence interval at under 50%.
So, theoretically, while we can't prove that Sotomayor really is "liberal" based on this analysis, we can prove that Republican appointees are "conservative". Way to go, people.
Not everyone can be as brilliant as you suspect you are.
"How does your "mediocre mind" charge fit with her outstanding academic success?"
Affirmative action.
unknown creteria for defining "legal experts"
unknown methodology used by nknown "legal experts"
unkown integrity or validity or accuracy of methodology of "legal experts"
Any concrete evidence, case studies, stnadard, criteria NIG FAT ZERO
what a lot of crazy stuff people get away in the disguise of what appears intellectual engagemet
But could this be slogan and dust storm bashing wearing a sheep skin of pseudo-intellectulis!
"I can understand your unwillingness to conduct a "thorough study" of her decisions, but how about an unthorough one? If you analyze one or two of them for us, you will improve your credibility."
I agree with you. But I thought I was careful not to present my suspicion as a firm conclusion, but a red flag. My suspicion comes from my own experience in observing people who are excessively detail oriented. The best minds I've come across have the ability to make the appropriate simplifications. It seems to me that an appellate judge who combs through the evidentiary facts without a clear purpose doesn't not know how to abstract what's important.
"Not everyone can be as brilliant as you suspect you are."
Do you really think your comment contributes to the discussion here? If you want to disagree with me-- fine present your argument. But the merely tossing out an insult hardly shows any effort on your part to engage.
My response was too snarky. I'm sorry. Let me elaborate.
I think we put too much emphasis on credentials. I know a number of people (including personal friends) who were absolutely brilliant students, but never went on to accomplish much by way of scholarly output. Sotomayor admits that AA helped her a lot, and that would be ok if she went on to a brilliant legal career. But did she? That's the question.
I also admit that I was extremely put off by her demeanor when I listened to the tape of the hearing on the Ricci case. She was nasty. I heard her concentrate on irreverent details. In my experience people that do that are usually a covering for their lack of understanding. I could be wrong, but at this point that's how I see it. With more information and work on my part, I might change my mind. But I don't think it's worth it as I think Obama will come up with someone worse.
Every bit as much as your post to which I was responding.
This from the guy who suspects Judge Sotomayor has a mediocre mind.
When Scalia votes for criminal defendants in cases like Kyllo or because of his views of the proper interpretation of the confrontation clause, that is not an indication that he is "liberal" on these issues.
Overall, this sort of "analysis" is a waste of time.
Guess what, if you want to understand a judges actual ideology, you are going to have to do some work. These lame statistics, when they are based on these horrible definitions of "liberal" and "conservative," are no substitute for a true analysis.
People who think they are in a position of knowing what is important without an thorough understanding of the details are fools.
Over reliance on "abstraction" and "simplification" without a firm understanding of those petty "details" that constitute actual reality is a sure path to bad decision-making.
If that is so, then do you suspect Charles Darwin of having a mediocre mind? He could overwhelm you with evidence to make his point. (Not just on the Origin of Species, either.)
Thank you for bringing up Darwin, but first let's see what Einstein said about simplicity:
Short form:Long form:Quoted from On the Method of Theoretical Physics The Herbert Spencer Lecture, delivered at Oxford (10 June 1933)
Now on to Darwin. One needs to distinguish between the work and the final work product. Darwin certainly spent years doing detailed studies, but his final theory as set fourth in The Origin of Species is the very model of simplicity. He explained the incredible complexity in nature on the basis of a few basic principles. Unfortunately Darwin's narrative as it appears in his book is complicated and convoluted, but that does not mean the theory itself is basically simple. Don't confuse the expression of a theory with the theory itself.
The basic point yet again: Great minds reduce the complex to the simple by appropriate approximation and abstraction. We see this over and over.
Not so great minds reduce the complex to the simple when they have an inadequate understanding of the details that constitute reality.
It should further be noted that Einstein was dealing with a particular field known as physics, a field that is at least somewhat distinct from law.
So, a simplistic mind that is not great, might think that physics is the same as law. I mean, isn't that more abstract? It may be more abstract to think that way. But that is also very wrong.
Anyway, in the end, Einstein, after making incredibly important contributions, also ended up being inflexible and not acknowledging the next steps in physics. Which, I think, demonstrates the problem of ideology or thinking that one has discovered the "right" abstraction.
Finally, the "right" abstraction depends on what your objective is. In most cases, it would be extremely foolish to think there is one "right" useful abstraction of a particular situation in the world. What is the right criteria for determining when one abstraction is better than another?
Overall, your thinking has been simplistic and certainly far from characteristic of a great mind.
Unfortunately, she will probably be confirmed before Jay Leno returns to TV this fall.
AA might explain why somebody gets admitted into an elite academic institution, but it doesn't explain why that person would, as S.S. did, excel there.
Of course you anticipate that response by claiming that doing extraordinarily well at an elite academic institution doesn't mean you have other than a mediocre mind. And I don't see you or anyone else producing any real evidence that her work as a judge shows that she her mind merely "mediocre."
You are, of course, entitled to that opinion, but I wonder how much of your opinion of S.S. is simply based on disagreeing with her on the merits of certain legal questions. There are less charitable interpretations of what you are saying, but I'll give you the benefit of the doubt.
I'd also like to give you the benefit of the doubt, so help me out here. I'm only aware of two prominent people whose intelligence you've gone out of your way to demean as overrepresented by their academic performance. Are there others I've missed who don't happen to be ethnic minorities?
"It should further be noted that Einstein was dealing with a particular field known as physics, a field that is at least somewhat distinct from law."
Yes, and for that very reason I stayed away from science, but SFH brought up Darwin.
"Anyway, in the end, Einstein, after making incredibly important contributions, also ended up being inflexible and not acknowledging the next steps in physics."
I'm not sure what this comment has to do with parsimony in physical theories, but you misrepresent Einstein. He had a basic disagreement with the Copenhagen interpretation of quantum mechanics. Instead he opted for the ensemble interpretation. This hardly characterizes him as "inflexible" Indeed today the Copenhagen school has lost much ground against the other interpretations, and is no longer mainstream. Einstein thought there were "hidden variables" that would clear up the paradoxes in quantum mechanics. Of course Bell's Theorem ultimately put this idea to rest. So we might say that Einstein would have done better to follow his own advice and go for the simpler theory-- no hidden variables.
"Finally, the "right" abstraction depends on what your objective is. In most cases, it would be extremely foolish to think there is one "right" useful abstraction of a particular situation in the world. What is the right criteria for determining when one abstraction is better than another?"
I agree, but this has little to do with my comment on Sotomayor being overly detailed. I was mainly reacting to the sentence:And then again, all I said was this was a "red flag," because in my experience people who get lost in excessive and unnecessary detail. The best minds distill out the essential elements and avoid complications.
"AA might explain why somebody gets admitted into an elite academic institution, but it doesn't explain why that person would, as S.S. did, excel there."
It might. At some institutions there is certainly political interference in grading. I know two former professors at the University of Michigan-- one taught engineering and the other mathematics. They both told me that they were not permitted to give low grades to black students. One was called into the Dean's office and told point blank: "We don't give "C" grades to black students." The Dean then changed the grade on his own authority.
At this point Sotomayor's academic performance is largely irrelevant to the question of her qualifications for the Supreme Court. Her record counts, and I have not studied that. I did listen to a tape of the hearing on the Ricci case, and she did not impress me with her questions and comments. She did not seem to grasp the essential issues of the case.
Now why do you think she's superbly qualified? Let's remember that being a justice on the Supreme Court is the top of the profession. What puts her at the top?
"I'm only aware of two prominent people whose intelligence you've gone out of your way to demean as overrepresented by their academic performance. Are there others I've missed who don't happen to be ethnic minorities?"
Only ethnic minorities have the opportunity to enjoy grade inflation. This is the current political situation in academia today. I know one case personally of someone who flew all the way to a PhD and job offers primarily on the basis of his race. We know this for a fact. We helped with his thesis.
In other words, "No."
Correct me if I'm wrong, but you seem to admit your views on this subject are racist -- you just think the racism is justified?
In other words, "No."
I personally know some non-minorities who did not live up to their suburb academic records, but I'm not going to name them for privacy reasons. As for public figures, Hillary Clinton is a possibility. She failed the DC bar, which is a pretty easy exam, and in my opinion her performance in the public arena is pretty dismal. George Bush is an outstanding idiot, but he was a mediocre student. Robert McNamara was an outstanding student, but I think he did a terrible job running the Pentagon, the Vietnam War and the
World Bank.
"Correct me if I'm wrong, but you seem to admit your views on this subject are racist -- you just think the racism is justified?"
I don't know what you mean by "racist." That word is now a political word with a highly variable meaning. But let's be clear it's Sotomayor who makes a big deal out of race. All I said was on the basis of my experience, sometimes certain minorities get special treatment both on admission and in grading. I don't see how you can argue with that, it's a fact.
I listened to the argument also, and didn't think she was "nasty" at all. I think she sounds like a good New Yorker, all business up there.
She certainly was asking a lot of pointed questions, but that's fine. As a practitioner, I'd rather know the judge's problem with my case in all its uncomfortable detail while I'm arguing, rather than have her sit there mute only to learn about it when I get the opinion.
"I listened to the argument also, and didn't think she was "nasty" at all."
Perhaps we have a different threshold for "nasty." But be clear, although I don't live there now, I'm a New Yorker, and believe me I know New York nasty.
A judicial hearing should have a least a little more dignity than a high school rank out session, and I don't think she has judicial temperament. For example at one point she arrogantly admonished one of the lawyers with "you are assuming the answer." If one listened carefully he wasn't.
Of course this is only one hearing, and perhaps she just had a bad day, but I doubt it.
Pardon me if I suggest this is BS.
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.