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.
Brown v. City of Oneonta:
Given interest in how Judge Sotomayor has approached cases involving race, the case of Brown v. City of Oneonta is worth a look. The panel opinion (as amended) is at 221 F.3d 329 (2nd Cir. 2000). The opinions respecting the denial of reharing en banc are at 235 F.3d 769 (2d Cir. 2000). Judge Sotomayor was not on the initial panel, but she did join most of Judge Calabresi's opinion dissenting from the denial of rehearing en banc in this interesting case. While this opinion may be less probative than one Judge Sotomayor authored herself, her participation in this case could help shed light on her views of the proper application of the Equal Protection Clause. It is also interesting to compare the rationale for en banc review endorsed by Judges Calabresi and Sotomayor in this case with their arguments for denying en banc review in Ricci v. DeStefano, another potentially divisive case involving race.
The full post including excerpts from the relevant opinions are below the jump.
Here are the basic facts, as described in the panel opinion written by Judge Walker:
Oneonta, a small town in upstate New York about sixty miles west of Albany, has about 10,000 full-time residents. In addition, some 7,500 students at-tend and reside at the State University of New York College at Oneonta (“SUCO”). The people in Oneonta are for the most part white. Fewer than three hundred blacks live in the town, and just two percent of [approximately 150 out of 7,500] stu-dents at SUCO are black.
On September 4, 1992, shortly before 2:00 a.m., someone broke into a house just outside Oneonta and attacked a seventy-seven-year-old woman. The woman told the police who responded to the scene that she could not identify her assailant's face, but that he was wielding a knife; that he was a black man, based on her view of his hand and forearm; and that he was young, because of the speed with which he crossed her room. She also told the police that, as they struggled, the suspect had cut himself on the hand with the knife. A police canine unit tracked the assailant's scent from the scene of the crime toward the SUCO campus, but lost the trail after several hundred yards.
The police immediately contacted SUCO and re-quested a list of its black male students. An official at SUCO supplied the list, and the police attempted to locate and question every black male student at SUCO. This endeavor produced no suspects. Then, over the next several days, the police conducted a “sweep” of Oneonta, stopping and questioning non-white persons on the streets and inspecting their hands for cuts. More than two hundred per-sons were questioned during that period, but no suspect was apprehended. Those persons whose names appeared on the SUCO list and those who were approached and questioned by the police, be-lieving that they had been unlawfully singled out because of their race, decided to seek redress.
Specifically, several SUCO students filed a class action suit against the city and others alleging violations of their rights under the Fourth Amendment and Equal Protection Clause of the Fourteenth Amendment. The district court dismissed or granted summary judgment to the defendants on all of the plaintiffs' claims.
On appeal, a three-judge panel of the Second Circuit affirmed the dismissal of plaintiffs' Equal Protection claims, but reversed in part the district court's grant of summary judgment with respect to some of the plaintiffs' Fourth Amendment claims. The Court summarized its conclusion of the former holding (which was the subject of the en banc opinions) thusly:
Plaintiffs do not allege that upon hearing that a violent crime had been committed, the police used an established profile of violent criminals to determine that the suspect must have been black. Nor do they allege that the defendant law enforcement agencies have a regular policy based upon racial stereotypes that all black Oneonta residents be questioned when-ever a violent crime is reported. In short, plaintiffs' factual premise is not supported by the pleadings: they were not questioned solely on the basis of their race. They were questioned on the altogether legitimate basis of a physical description given by the victim of a crime. Defendants' policy was race-neutral on its face; their policy was to investigate crimes by interviewing the victim, getting a description of the assailant, and seeking out persons who matched that description. This description contained not only race, but also gender and age, as well as the possibility of a cut on the hand. In acting on the description provided by the victim of the assault-a description that included race as one of several elements-defendants did not engage in a suspect racial classification that would draw strict scrutiny. The description, which originated not with the state but with the victim, was a legitimate classification within which potential suspects might be found. . . .
The Equal Protection Clause, however, has long been interpreted to extend to governmental action that has a disparate impact on a minority group only when that action was undertaken with discriminatory intent. See Washington v. Davis. Without additional evidence of discriminatory animus, the disparate impact of an investigation such as the one in this case is insufficient to sustain an equal protection claim.
The court also stressed that it was not, in any way, approving the police conduct, but only finding that plaintiffs had not alleged facts that would constitute a violation of the Equal Protection Clause.
On petition for rehearing en banc [235 F.3d 769 (2d Cir. 2000)], Judge Sotomayor joined Judge Calabresi's dissenting opinion (on behalf of five judges) decrying the panel's "egregious" errors, such as (a) including "unnecessary, and inevitably hurtful, remarks about when following victims' descriptions involving race is constitutionally permissible"; (b) "ignoring pleadings that are manifestly sufficient under our 12(b)(6) jurisprudence"; and (c) refusing to require [although allowing] the district court to permit further pleadings" involving amended claims. Wrote Calabresi: "These errors, moreover, are egregious, and are made in a case that directly involves issues that most searingly divide our society. When such issues are incorrectly dealt with by a panel of our court, an in banc rehearing is, to my way of thinking, not only justified but essential. For that reason, I respectfully dissent from the denial of in banc review." Judge Calabresi further explained:
two fundamental problems with the panel's opinion justify in banc review. First, the panel errs in avoiding the critical issue that the plaintiffs' factual allegations have raised-the creation in this case of a racial classification as a result of police deviation from the victim's description. Second, that deficiency is compounded by the panel's reaching out to decide the highly divisive, and, it seems to me, unripe, question of whether and when following a victim's description is acceptable. Converting what would otherwise be dicta into what sounds like a statement of law is almost always undesirable. In the circumstances before us, it is especially unfortunate.
Why is this so? The first reason is that by doing this, the panel prematurely legitimates actions that-even if they might ultimately be deemed valid-are, as the panel itself recognized, extremely offensive to a much abused part of our population. . . . However many heartfelt apologies the panel makes for doing so, this cannot help but hurt. If, as the plaintiffs alleged, the police did not merely follow the victim's description in questioning every male black student and two thirds of all of the black residents of the City of Oneonta, I should have thought it wise for the court to welcome the opportunity these allegations gave it to avoid having to tell African-Americans that we are sorry, but you just have to put up with racially linked sweeps when victims-perhaps influenced by their own racial fears, or by our country's long history of racial divisions-give an essentially racial description.
But there are also other, structural, reasons why the panel's, to me unnecessary, validation of the police sweep is particularly undesirable. The question of when, if ever, merely following a victim's description that is predominantly racial might violate equal protection norms is an extremely difficult one. A couple of examples will suggest why. Suppose an armed robbery occurs in which the victim cuts the arm of the robber. The robber, described by the victim in racial terms, runs into a crowded bar where there are only three others who could be so described. Is it wrong for the police to ask the four to show whether they have a cut on their arm? Of course not. But imagine, instead, that a passer-by sees someone illegally swimming naked in a park pond and describes the swimmer to the police in racial terms, adding that the swimmer can readily be identified because he has a distinctive tattoo on his posterior. Can it possibly be acceptable for the police to ask every male in town who fits that racial description to strip, even if the police do so with utmost politeness and in full conformity with Fourth Amendment strictures? I would certainly think not.
In between these examples there are any number of permutations involving, among other things, (a) the seriousness of the crime; (b) the number of people in the racially defined group who are subject to questioning; (c) the significance and extent of non-racial attributes given by the victim in addition to the racial one; (d) the capacity of the victim to describe the perpetrator in non-racial (as well as in racial) terms; (e) the effort, if any, by the police to elicit from the victim such non-racial descriptions; (f) the intrusive-ness of the questioning; and (g) the special indignity (arising from the existence of stereotypes) that may result from connecting those in a given racial group with a particular type of crime.
Judge Walker responded, arguing that Judge Calabresi and the other dissenters had "chosen this occasion to advance, for the first time, novel equal protection theories" of the sort "common to the pages of an academic journal" but which, in Judge Walker's view, "would severely impact police protection." He wrote:
The dissenters propose that when the police have been given a description of a criminal perpetrator by the victim that includes the perpetrator's race, their subsequent investigation to find that perpetrator may constitute a suspect racial classification under the equal protection clause. . . . Judge Calabresi believes that equal protection review arises . . . when the police ignore the non-racial components of the provided description and question persons who, except for the racial descriptor, do not fit the description provided.
The fact that no legal opinion, concurrence, dissent (or other judicial pronouncement) has ever intimated, much less proposed, any such rules of equal protection confirms a strong intuition of their non-viability. But, for the benefit of anyone who in the future may be undeterred by the inability of these theories to attract judicial recognition, their practical difficulties and analytical defects should be recognized.
Judge Walker further argued that the Fourth Amendment's prohibition on unreasonable searches and seizures "carefully calibrated by the Supreme Court over two centuries, balances law enforcement needs against the rights of the citizen to be protected," making resort to the Equal Protection Clause in cases such as this unnecessary and unwise.
Judge Calabresi's proposal, by injecting equal protec-tion analysis into police investigations that rely on racial descriptors, would upset this carefully crafted balance. Fearing personal liability through Section 1983, 42 U.S.C. § 1983, litigation from equal protection violations arising from their investigative activities, police officers would undoubtedly fail to act in situations where we would expect them to.
Judge Sotomayor did not write her own opinion in this case, but she did join the bulk of Judge Calabresi's dissent.
Goldstein on Sotomayor and Race Cases (Again):
SCOTUSBlog's Tom Goldstein has an op-ed in today's NYT on how Sonia Sotomayor has handled cases involving race on the U.S. Court of Appeals for the Second Circuit. Given my high opinion of Goldstein's work, I found the article disappointing.
Goldstein frames the article as a response to the charges that Sotomayor is biased or, worse, a "racist." As I've blogged previously, the racist charge is outrageous and unjustified. In this context it is also something of a straw man.
Substantively, the op-ed largely rehashes his conclusions from this SCOTUSBlog post. As a consequence, the essay is subject to the same criticisms I made here and David Stras made on SCOTUSBlog. Among other things, insofar as the analysis fails to compare Judge Sotomayor's pattern of deciding cases with those of her colleagues, it does not tell us very much about whether Judge Sotomayor is more or less likely to let her own preferences with regard to racial matters influence her judging than other judges. I recognize that such an analysis would likely require more time and energy than a practitioner in Goldstein's position has available, but such an analysis is necessary if one really wants to be able to make sweeping claims based on the numbers.
As has been pointed out time and again, including by President Obama, any competent, reasonably conscentious appellate judge will reach the same conclusion as his or her colleagues in the vast majority of cases. In most such cases, the relevant law and precedent are sufficiently clear. [As an aside, this would even be true of a competent-yet-"racist" judge, as racial bigotry would not necessarily lead a judge to be ignore precendent, text, and the like.] A judge's "biases" or predisipositions are only likely to come into play in that small handful of cases -- five percent by the President's estimation -- in which the law is sufficiently unclear that there is room for a judge to indulge his or her preferences. This fact, and institutional pressures for unanimity, mean that the vast majority of appellate panel decisions are unanimous. As I don't think there is any question that Judge Sotomayor is a highly competent and conscientious judge, noting that she agreed with her colleagues in the vast majority of cases does not tell us anything that we did not already know.
If we really want to know whether and how Judge Sotomayor's legal and policy preferences are likely to affect her decisions in race-related cases on the Supreme Court, we have to look at that small percentage of cases in which the law was unclear or where she and her colleagues diverged. There are only a handful of such cases, but focusing on these opinions is likely to tell us more than Goldstein's superficial analysis. Ricci is relevant here -- both because of how it was handled procedurally and because the Obama Administration has asked the Supreme Court to reverse and remand the case -- as are some other cases like Brown v. City of Oneanta (an equal protection challenge to police conduct I discussed here), Gant v. Wallingford Board of Education (involving a claim that demoting a black elementary school student was racially discriminatory), and Hayden v. Pataki (a disparate impact challenge to felon disenfranchisement).
Looking at the race-related cases in which Judge Sotomayor has disagreed with her colleagues leads me to the following conclusion (although it does not convince me to oppose her nomination). Compared to the other judges on her Cirucit, Judge Sotomayor appears more inclined to accept aggressive and innovative use of equal protection arguments in race-related cases and seems to be more accepting of the use of race to achieve diversity in the workplace. This does not make her an "extremist," and it certainly does not make her a "racist," but it does suggest she would fit comfortably on the "liberal" side of the current court on such issues, and is consistent with the inference one could draw from her speeches. Insofar as one disagrees with this approach to race-related cases, this could be cause for concern. [Conversely, insofar as one believes the current Court is too timid on race-related issues, it could be cause for cheer.]
I recognize that space limitations likely prevented Goldstein from presenting a more nuanced picture of Judge Sotomayor's record in this area, and almost certainly precluded a more detailed discussion of Ricci and other cases. But I also think that it is mistaken to claim that Goldstein's review of the cases somehow proves that Judge Sotomayor would be particularly moderate or restrained on race-related issues or is somehow immune to allowing her biases to influence her resolution of close cases.