Sotomayor: Actual Facts!

As more or less everyone has already noted, a lot of people have been claiming that Sonia Sotomayor is a racist, would decide cases based on racial solidarity rather than on the law, and so forth. One natural way to check this would be to examine her actual record. She has, after all, been a judge for quite a while, so it should not be all that hard to see how she actually makes decisions.

Over at SCOTUSBlog, Tom Goldstein decided to do just that. He has been reading through all of Sotomayor’s opinions in cases involving race. He promises to write more about them tomorrow, but here is what his analysis shows:

“Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.

Of the roughly 75 panel opinions rejecting claims of discrimination, Judge Sotomayor dissented 2 times. In Neilson v. Colgate-Palmolive Co., 199 F.3d 642 (1999), she dissented from the affirmance of the district court’s order appointing a guardian for the plaintiff, an issue unrelated to race. In Gant v. Wallingford Bd. of Educ., 195 F.3d 134 (1999), she would have allowed a black kindergartner to proceed with the claim that he was discriminated against in a school transfer. A third dissent did not relate to race discrimination: In Pappas v. Giuliani, 290 F.3d 143 (2002), she dissented from the majority’s holding that the NYPD could fire a white employee for distributing racist materials.

As noted in the post below, Judge Sotomayor was twice on panels reversing district court decisions agreeing with race-related claims – i.e., reversing a finding of impermissible race-based decisions. Both were criminal cases involving jury selection. (…)

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. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She particulated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.”

I honestly don’t know why so many people focus so much attention on their somewhat overwrought interpretations of one line in a speech and so little attention on ascertaining what kind of judge Sonia Sotomayor has been. Her decisions are not classified documents. They are public, and anyone can read them. Moreover, they plainly provide the best evidence of the kind of judge she will be.

I cannot imagine why more journalists have not done the kind of analysis that Tom Goldstein has — the ratio of reporting on what someone thinks s/he can discern in one line of Sotomayor’s speech to reporting on actual cases is just about the reverse of what it ought to be. That makes me all the more grateful to SCOTUSBlog for giving us the kind of analysis we need, but get far too rarely.

One other interesting point: Sotomayor’s panel has been criticized for not explaining their reasoning in the Ricci case. Whether this is plausibly construed as an attempt to duck the issues depends in part on how common it is for a panel on the Second Circuit to affirm a district court opinion without explaining why. Goldstein therefore checked this point as he was going through the race-related cases:

“In the roughly 55 cases in which the panel affirmed district court decisions rejecting a claim of employment discrimination or retaliation, the panel published its opinion or order only 5 times.”

Good to know.

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