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.