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Judge Sotomayor's Record in Constitutional Cases:

Today the Brennan Center for Justice at NYU's School of Law released a report by Monica Youn, Judge Sotomayor's Record in Constitutional Cases. The study looked at over 1,000 constitutional cases heard by the U.S. Court of Appeals for the Second Circuit during the time Judge Sotomayor was on the court. Here is how the Brennan Center summarizes the findings in the report's Executive Summary:

Based on this exhaustive review, the conclusion is unmistakable: in constitutional cases, Judge Sotomayor is solidly in the mainstream of the Second Circuit. After we analyzed every constitutional case in the Second Circuit over the past decade, what was striking was the degree of unanimity and consensus on a court roughly evenly split between Democratic appointees and Republican appointees.

  • Even given the often-noted collegiality of the Second Circuit, Judge Sotomayor has been in agreement with her colleagues more often than most - 94% of her constitutional decisions have been unanimous.

  • She has voted with the majority in 98.2% of constitutional cases. When she has voted to hold a challenged governmental action unconstitutional, her decisions have been unanimous over 90% of the time.

  • Republican appointees have agreed with her decision to hold a challenged governmental action unconstitutional in nearly 90% of cases. When she has voted to overrule a lower court or agency, her decisions have been unanimous over 93% of the time.

  • Republican appointees have agreed with her decision to overrule a lower court decision in over 94% of cases. She overruled lower court and agency decisions at a rate that closely conforms to the circuit overall average.

Our analysis shows that - far from casting her as an "outlier" - Judge Sotomayor's record is remarkably consistent with that of her colleagues. The analysis also refutes charges made since the day of her nomination that Judge Sotomayor is a "judicial activist." Any honest reading of the facts make it abundantly clear that Judge Sotomayor is a mainstream jurist.

What the executive summary does not mention, but the accompanying graphs show (see here, page 13), is that Judge Sotomayor votes to overturn governmental action on constitutional grounds more often than the average judge on the Second Circuit, a point also noted in this NYT story. The report claims this difference was not statistically significant.

krs:
The Brennan Center is a well-known bastion of neutrality and analytical rigor.
7.9.2009 12:51pm
Oren:

The Brennan Center is a well-known bastion of neutrality and analytical rigor.

And because arithmetic is such a bias-prone activity that we shouldn't let people with an agenda count?


The analysis also refutes charges made since the day of her nomination that Judge Sotomayor is a "judicial activist."

It does nothing of the sort, it only says that she's an activist in such cases as most of the 2CA judges are activist and not an activist in such cases as most of the 2CA judges aren't.
7.9.2009 12:53pm
Redman:
To me, the major factor in favor of a Sotomayor confirmation is that she would be replacing another justice who was an automatic liberal wing vote. So, having her on the Court would create no shake up in the court's composition.

On the other hand, if she were being nominated to replace Scalia or Thomas she wouldn't have a chance.
7.9.2009 12:58pm
ruuffles (mail) (www):

On the other hand, if she were being nominated to replace Scalia or Thomas she wouldn't have a chance.

Just like Thomas didn't have a chance after being nominated to replace Marshall? Besides, now that the Democrats have 60 members, the opposition would not only have to pick off Democratic votes (so far none have defected), but also admit that filibustering is acceptable (good luck getting more than 10 to defect).
7.9.2009 1:02pm
byomtov (mail):
On the other hand, if she were being nominated to replace Scalia or Thomas she wouldn't have a chance.


When was it decreed that the current balance on the court is sacrosanct? If McCain had been elected, and had nominated a very conservative individual to replace Souter, would you have opposed confirmation on grounds of "balance?"
7.9.2009 1:38pm
krs:
When was it decreed that the current balance on the court is sacrosanct?

At least as early as 2005 when, lacking other decent arguments, Democrats criticized Roberts and then Alito as being more conservative than O'Connor and therefore upsetting the "balance" on the court.
7.9.2009 2:12pm
Smooth, Like a Rhapsody (mail):
Redman:
Wouldn't have a chance to do what?
Surely you do not refer her chances for confirmation.
7.9.2009 2:17pm
Anderson (mail):
At least as early as 2005 when, lacking other decent arguments, Democrats criticized Roberts and then Alito as being more conservative than O'Connor and therefore upsetting the "balance" on the court.

Who won that argument? I seem to've forgotten.
7.9.2009 2:34pm
xx:
Is it unusual to omit statistically-insignificant data from an executive summary?
7.9.2009 3:16pm
Cato The Elder (mail) (www):
The value of these "statistics" analyzing Sotomayor's Second Circuit decisions seems to me as useful as that popular one you often hear about how humans share 99.5% of their DNA with chimpanzees. A misleading statistic, but it sounds facially insightful, so the ignorant and the stupid often have it at the ready to sound knowledgeable.

You could probably readily find another conservative appellate justice to which these numbers would apply. But obviously their jurisprudential philosophies still remain different in that case. A good model of jurisprudence should not explain everything, but should allow us to tease apart those two judges' philosophies according to variables we are interested in - liberal/conservative, formalist/pragmatist - in other words, it should explain the differences, as well as the similarities.
7.9.2009 6:53pm
Steve2:
Ok, so she's mainstream within the 2nd Circuit. But how's the 2nd Circuit compare to the other Circuits? Is it like saying she's a mainstream member of a reasonable court, or a mainstream member of a court that routinely ignores SCOTUS precedent, plain English meanings, statutory text, and logical reasoning in its rulings on entire areas of subject matter like patent law or oversight of Article I courts? I mean, there's at least one Circuit from which a mainstream (vis-a-vis the rest of the court) judge is presumptively unqualified for promotion to SCOTUS based on being a member of that Circuit Court.
7.9.2009 7:32pm
TNeloms:
I think Cato is absolutely right. Percentages above 90 sound pretty compelling, but really don't mean much. Comparing these numbers to those of other 2nd Circuit judges is much more meaningful. A brief look at the graphs, though, does support the conclusion that she's not much of an outlier along most or all of these criteria.
7.9.2009 7:53pm
Owen H. (mail):
I just read a column complaining that Sotomayor also tended to hand down harsher sentences more often for white collar crimes. Damn those liberals, being tough on crime!
7.9.2009 9:20pm
nicestrategy (mail):
All the legal arguments and statistics presented by both sides will be proxy for politics, yet the Republicans might insist on alienating a key political constituency because they don't know what else to do. Kabuki politics at its finest. What a waste of time.

If I were advising the GOP here I'd tell them to give Sotomayor a very easy time. Then, next time, when the balance of the court might actually be at stake, their opposition (be it principled or unprincipled in reality) will have a much greater chance of being seen as reasonable. They might have figured this out since Lindsey Graham was recently quoted as being open to voting for her, but there are some real nut-jobs in the Senate right now who actually seem to think Sotomayor is a radical. So we'll see. If they use the hearings to offer principled criticism while also showing some respect and then stand down and (mostly) vote for her, it costs them nothing* and sets them up to be able to fight anyone demonstrably to her left that might come along later, plus they'll erase some of the ill-will earned in the Hispanic community with the knee-jerk reaction to her nomination.

If they use the hearings to try and prove that white people are the real victims in this society, they will just look insane and clueless.

*Actually, this strategy could cost them in the short term with the Rush Limbaugh party orthodoxy crowd. I'm hoping they fall for this "playing to the base" thing, however they rationalize it, because it will further empower Obama and the Dems and that generally suits me. Eventually they will figure out that taking the reactionary line on each and every issue is marginalizing the whole party, but I'm hoping that isn't until after 2012.
7.10.2009 4:55am