Sotomayor: Actual Facts!

by hilzoy

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.

Comments

[Warren Terra]

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.

I don't know, either, but I can certainly guess, and with some confidence. I think that most of them, at least those who aren't just mindlessly repeating the context-free talking point they've been fed from an irresponsible and incurious position of near-total ignorance, don't actually care about Sotomayor's fate, and don't think they can affect it - but know that by seizing on one potentially incendiary quotelet they can get on TV, and can raise some money from the dupes.

[lilneelix]

I'm more worried about:

"Court of Appeals is where policy is made," Sotomayor says on the tape…

"I know — I know this is on tape and I should never say that, because we don’t make law," she continued, to nervous laughter from the crowd. "I know, OK, I know."

Then she sought to distance herself a little by adding, "I’m not promoting it and I’m not advocating it." *wink *wink

[gwangung]

I'm more worried about:

"Court of Appeals is where policy is made," Sotomayor says on the tape…

That's 2.

Here's another "2": a reading of her decisions show that they are made on as narrow grounds as possible, with as much precedent cited as possible.

What do you get when you add them together?

You should not be worried after that.

[Enlightened Layperson]

I think revenge is a major motive here. Democrats blocked the nomination of Robert Bork back in the '80's. They resisted (but did not block) Roberts and Alito. Now it's payback time!

[Warren Terra]

I was a child at the time, so I didn't really watch it as it happened, but really do not understand the persistent way the Republicans cling to their mythology of the failed Bork nomination, as if the man were somehow unjustly martyred. The case for his rejection at the time was excellent; indeed, his record in the Nixon administration alone should have sufficed to disqualify him. His behavior in the decades since -- essentially, he's been the fullthroated extremist that Scalia would be if the restraining columns of the courthouse indeed could no longer contain his two-fisted justice -- just cements the notion that Bork is unjudicious of temperament in every sense.

And yet he practically gets portrayed as the Republican Christ, and his name gets verbed. I just don't get it.

[brent]

I'm more worried about:

"Court of Appeals is where policy is made," Sotomayor says on the tape…

Which is to say you are worried about what exactly? That the Supreme Court might make policy for the lower courts when she gets there. That Supreme court rulings might establish what is lawful and what isn't. If either of those are your concerns, I have some terrible news for you...

[Warren Terra]

As brent alludes to, while the "where policy is made" quote can be used to frighten if that's all you see, my understanding of the context is that was that she was talking about policy for court decisions, not for the country more broadly, and saying that the appeals courts effectively made policy for the lower branches of the courts. Which really isn't shocking.

[Creamy Goodness]

I cannot imagine why more journalists have not done the kind of analysis that Tom Goldstein has

Because "journalism" as practiced by scumbags desperate to sell a paper or two via manufactured controversies bears no resemblance to any ideal quest for truth. They'll do whatever they can to force Sotomayor's nomination to a "game seven" where everyone tunes in to watch.

[Sebastian]

"while the "where policy is made" quote can be used to frighten if that's all you see, my understanding of the context is that was that she was talking about policy for court decisions, not for the country more broadly,"

I don't agree that is a likely interpretation. It wouldn't have had the funny gaffe quality which is VERY apparent in the actual video, nor does it really make sense in context.

[Hartmut]

It's useless to look at judge Maria's court decisions. She is part of the same longterm conspiracy that brought the N-word into the WH. She(?) was preordained at birth to become the N-word's first henchbeing on SCOTUS, so all her decisions on the bench were made to hide her tracks until affirmed for the final position*. For that same reason her true given name was hidden. And does her family name not sound suspiciously close to 'Satan Mayor'?

*actual claim made recently

[Sebastian]

"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."

I don't find this convincing. In the easy cases, failing to publish an opinion is routine. In hard cases it is a dereliction of duty. Very few people think that Ricci is an easy case, and the Supreme Court (as one possible measure of expert opinion) doesn't seem to think so. The Bushey case which the district court cited (and which features prominently in your previous post) seems to stand for the proposition that summary judgment is inappropriate without fact finding on the question of whether or not the people who were successful are discriminated against something which is certainly not present in Ricci.

[Charles S]

On the WashingtonMonthly version of this post, Peter raises the issue of Sotomayor's handling of Jocks v. Taverier, in which Sotomayor convinced her fellow appellate judges that blatant abuse of power should not prevent a police officer from being sued for false arrest. I read through the first three posts summarizing Sotomayor's decisions that were linked to here recently, and I'm wondering if there is any reason to believe that Sotomayor is not yet another pro-corporation, pro-authority conservative. The only case I noticed that runs against that trend was her dissent in which she argued for the right of an employee to be protected against being fired for mailing anonymous racist letters to charities.

[Nell]

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.

And I honestly don't know why Pres. Obama would choose to legitimize overwrought (and bad-faith) interpretations of one line in a speech rather than emphasizing what kind of judge she's been (thus demonstrating the critics' ignorance and/or bad faith).

[rea]

In the easy cases, failing to publish an opinion is routine. In hard cases it is a dereliction of duty. Very few people think that Ricci is an easy case, and the Supreme Court (as one possible measure of expert opinion) doesn't seem to think so.

The thing is, Ricci was an easy case if you're a judge on the Court of Appeals, without the power to rework controlling precedent. If you are Justice of the Supreme Court contemplating basic changes in the way our civil rights laws are enforced, perhaps it is less easy.

[Brett Bellmore]

The thing is, Ricci was an easy case for the defendants to win at trial. But not an automatic win, and that's the only time the plaintiffs are supposed to be denied a trial that way: If they would lose even assuming all factual issues were resolved in their favor.

That does not appear to have been the case here. Precedent has our civil rights laws tilted heavily in favor of people who want to run quota systems, but not yet 100%.

[Warren Terra]

And I honestly don't know why Pres. Obama would choose to legitimize overwrought (and bad-faith) interpretations of one line in a speech rather than emphasizing what kind of judge she's been (thus demonstrating the critics' ignorance and/or bad faith).

Maybe he was just cheerfully giving the Republicans enough rope to hang themselves? I don't think it cost him anything, I don't think it hurt her nomination, and all he really said was basically "y'know, that phrasing wasn't perfect" - but it keeps the news media and the Republicans talking about Sotmoayor's views on race, which upon any serious inspection aren't remarkable, and by extension keeps them talking about her race. As long as the topic is her race, rather than her jurisprudence, there is almost no way Obama doesn't come out ahead, not just on this nomination but in general, as the Republicans continue to shoot themselves in the foot and to generally look like neanderthals. Or maybe I'm wrong, and it was just a slip. Hardly seems to merit handwringing.

[Slartibartfast]

"I don't know, either, but I can certainly guess, and with some confidence. I think that most of them, at least those who aren't just mindlessly repeating the context-free talking point they've been fed from an irresponsible and incurious position of near-total ignorance, don't actually care about Sotomayor's fate, and don't think they can affect it - but know that by seizing on one potentially incendiary quotelet they can get on TV, and can raise some money from the dupes."

Whopper of a sentence, WT. I'd say that opposition is all that, plus a touch of slippery-slope aversion, and possibly a dab of we-can't-let-the-liberals-take-any-ground-unfought-for.

I'm not all that concerned about Sotomayor. She seems mostly harmless, to me.

[phg]

"In the easy cases, failing to publish an opinion is routine. In hard cases it is a dereliction of duty. Very few people think that Ricci is an easy case, and the Supreme Court (as one possible measure of expert opinion) doesn't seem to think so".

May I suggest what just about every attorney, and most journalists already know? If the appellate panel fails to publish an opinion, it usually means they are simply stating the opinion of the district court was correct. If you want to know the rationale for the decision, therefore, all you have to do is read the district court decision. Even pro forma affirmations have a basis. Stating that the lack of a written opinion is a dereliction of duty in this regard is simply wrong.

[russell]

"*wink *wink"

Yes, the winks are clearly visible in the video tape.

Sotomayor is a Puerto Rican woman appointed to the Supreme Court by Barack Obama. Those are the only facts anyone needs to consider.

[bakho]

TeeVee is all about viewers. Viewers will listen to a shouting match, but doze off when talking heads drone on.

TeeVee is poor medium for discussing the nitty gritty.

[shirt]

I think you do know why... It's not PC to say that someone with her background might not give the privledged (Vilagers, Bush syndicators, WallStreetWalkers) the breaks they have so richly earned.

[ken]

Regarding Ricci vs New Haven.

There is something wrong with our legal system when it perpetuates discrimination on the basis of race.

As I understand the facts of the csse the city threw out the results of the test not because the test was biased, but solely because no blacks scored high enough to make the cut for promotion. This is not right. We cannot maintain a civil society if we allow such discrimination to take place.

I am not happy that, when the issue was before her, the next supreme court justice sided with New Haven in this case.

[gwangung]

As I understand the facts of the csse the city threw out the results of the test not because the test was biased, but solely because no blacks scored high enough to make the cut for promotion. This is not right. We cannot maintain a civil society if we allow such discrimination to take place.

I am not happy to see such shallow understanding of the case. We cannot maintain a civil society if we do not understand that the city was open to suits if they allowed the results and if they did not allow the results...AND THEY COULD VERY WELL HAVE LOST EITHER WAY.

I am also not happy to see such an evaluation, based on a single case, without looking at the context of other race-related cases and the whole of Sotomayor's decisions. It suggests a narrow focus, instead of a broad understanding.

[ken]

gwangung,

Your argument is that racial discrimination is ok if it avoids a lawsuit. That is pretty shallow of you.

If the city had demonstrated that the test was biased, the city would have a case. But that is not what happened. The test was not biased. The test just showed, without bias to race, that more whites were qualified than were blacks at that particular time and with that particular group of test takers.

This is not a difficult case. It would have been reassuring if our next justice had seen the importance of fairness in this case.

[jv]

The fact that she made the remarks to an organization called "The Race" that promotes "racial pride" is a little unsettling. More unsettling is the quick apology. Either spin away the answer or stand up and say "I meant what I meant." Apologizing is a bad way to start talking about what you stand for.

I will wait to hear what she says in hearings. How she answers questions there and what she says are much more telling to what she stands for and what she will do on the Supreme Court.

She is about 100% assured to be seated, but at least we can get some idea what she brings to the court. Right now it does not look like very much and she appears to be a minor league justice like Souter at best. Not much to her so far.

[russell]

"This is not a difficult case. "

Clearly. It's so obviously open and shut that it's going all the way to the SCOTUS.

"The fact that she made the remarks to an organization called "The Race" that promotes "racial pride" is a little unsettling."

Yes, and every time I attend a St Patrick's Day parade, or go to the San Gennaro festival in Little Italy, or watch men in kilts blow into what appears to be a shrieking plaid octopus, it disturbs me just as much.

[ken]

russell, it really is not a difficult case.

The problem is the racial baggage surrounding it. That baggage makes cowards of elected officials who try mightily to avoid making controversial decisions. They leave them to the courts whenever possible.

Unfortunately a lot of that baggage has undue influence on judges as well. They are given lifetime appointments that shields them from the consequences of their decisions in the hope that they can therefore be more fair than the average citizen. But still they are often unduly influenced by the society's, and their own, prejudices

[Gary Farber]

"I am not happy to see such shallow understanding of the case."

It's hardly surprising, coming from ken, the guy driven mad at the notion that the racist Obama could possibly dare to interfere with Senator Clinton's roll to the throne. Ken and all his friends in a bar said that'd never happen, of course, but he was terribly terribly upset by the racism involve in electing Obama.

Some people are quite consistent. Ken is another one of those whose only concerns about racism is the terrible threat it poses to white people.

[Gary Farber]

Indeed, aside from the evils of the racist Obama, and his racist supporters, ken's bete noire, one might say, was the persecution of his nephew by affirmative action, I remind folks. ken | September 13, 2008 at 06:50 PM, plus lots more below that, as well as trolling on other topics above it.

And ken never did answer simple questions to back up his claims. Gary Farber | September 14, 2008 at 12:56 AM

Ah, if I had a penny for every time ken assured us all that Obama could never win and was handing the election to McCain by preventing Clinton's nomination....

[Gary Farber]

Specifically, I'm still waiting for answers from ken on these standing questions about what he wrote last September:

"I can never forgive [Barack Obama] for useing racism against the Clintons."

How did Barack Obama do that?

"But I also will no longer support afirmative action, preferential admission policies and other programs designed to assist minorities gain access to good job opportunities."

What does Barack Obama have to do with this?

"But we also know that when somone like [ken's nephew] does not get accepted it is because they made room for a minority applicant with lower GPA. Skin color made all the difference."

How, exactly, do you know this? Please be specific.

"jes, Your comment about me is typical racism."

Can you please define what you mean by "racism"?

Thanks.

[tomtom]

"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."

Please. The line form the speech is juicy and statistical analysis is boring.

"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."

Imagine this. Work is hard. You don't need to go deep to sell news.

The winger base needs to be riled to open their checkbooks. Lots of us want to be entertained. The left wants to be reassured. A few remaining people actually want to understand who Sotomayor is. It turns out she is moderate, even technocratic, not very ideological. Not unlike Obama himself.

[russell]

"The problem is the racial baggage surrounding it."

Yes, all that baggage that drags in the entire history of this nation reaching back before its very founding, around a topic that has been and still is the most troublesome and divisive one the nation has ever faced, that touches on concepts of justice and equality before the law that are at the very core of what the nation is about.

If it wasn't for all of that, it would be a layup.

Sorry about your nephew.

[Francis J. Donovan]

I am Conservative-Republican. That does not mean that I am stupid or mean. This little lsdy is the best of the Democratic brood. We lost. They won. They pick the judge. Obama is not going to pick one of us. If the Republicans hope to win in future, they should not look like the load mouth, mean spirited Limbaugh. It is not wise to alienate the fsstest growing segment of the electorate. Let's be nice and work to win next time.

[Nell]

"This little Isdy"

Translation, please?

[Nell]

Question to Francis J. Donovan withdrawn. A closer look at the sans-serif font reveals that it's probably a typo, intended to be "this little lady".

So, no question, FJD, but a friendly request (and piece of advice that will help you and your party get back on the path to respectability): please don't refer to any woman as "this little lady", and try to understand why it's especially offensive in this context.

[The not-so-polite version of this request/advice is: That's "Judge Sotomayor" to you, pal.]

[wj]

Sotomayor is a Puerto Rican woman appointed to the Supreme Court by Barack Obama. Those are the only facts anyone needs to consider. - russell

How about considering something actually relevant? Like: this is a moderate to conservative appeals court judge, based on her rulings over a lot of years. As a conservative myself, I think that really has much more to say about her qualifications for the Supreme Court than where her ancestors came from, or who is the president who has nominated her.

[gwangung]

How about considering something actually relevant? Like: this is a moderate to conservative appeals court judge, based on her rulings over a lot of years. As a conservative myself, I think that really has much more to say about her qualifications for the Supreme Court than where her ancestors came from, or who is the president who has nominated her.

Well, yes. And it puts ALL her statements, about appellate courts making policy, about her background informing her decisions, in proper perspective.

If her statements out of court are so important, then they MUST have some sort of relationship to her decisions. Can someone put two and two together for me?

[russell]

"How about considering something actually relevant?"

Sorry, my comment was sarcastic. Sorry that was not clear.

I think your take on Sotomayor is about right.

[OCSteve]

Good post hilzoy. I have nothing against her and I think she should be confirmed. Not because of her ethnicity or gender, because she seems to have a lot of relevant experience.

As far as Ricci goes… Republicans will try to make a big deal out of that, but it will not get them anywhere. She can’t really talk about it in confirmation hearings as it’s likely to come back before her (confirmed or not). So she’ll decline to answer related questions on that basis.

[wj]

Sorry, Russell. If I had a decent memory for names, I would be able to remember where you mostly stand on things. (I, however, am perfectly capable of forgetting my wife's name when going to introduce her to someone. And have. It's a gift!)

[gwangung]

I have nothing against her and I think she should be confirmed. Not because of her ethnicity or gender, because she seems to have a lot of relevant experience.

That's they key thing, really. I think a lot of folks got tripped up because they don't make it clear that there's a hierarchy of criteria. You want competence as a lawyer, competence to brilliance as a judge and a wide variety of legal experience first. Things like diversity should be discussed as a second order criterion, AFTER considering basic competence.

Much of the attacks simply don't bother with her competence and experience and go straight for her gender and ethnicity without considering her legal decisions. Her defenders do no credit by meeting those attacks without mentioning that primary criterion.

(And it goes without saying, if we satisfy that core competence, then there should be no reason in the world NOT to consider diversity in background, experience and volunteer work---breadth of experience in a body has been, should be and always will be a plus to work for).

[OCSteve]

“Sorry, Russell. If I had a decent memory for names, I would be able to remember where you mostly stand on things.”

Russell stands for truth, justice, and the American way. No snark. Russell is the dude.

[russell]

I abide. :)

[Gary Farber]

"She can’t really talk about it in confirmation hearings as it’s likely to come back before her (confirmed or not)."

If she's on the Supreme Court when it comes before them, as is likely to happen, she'd recuse herself, I'd expect.

[Robert F. tangen]

The old Latina comment is not all that bad but it does beg the question how much better does she think this country that was founded and started by old white men that wrote the Declaration of Independence and the Constitution would be if that group had been old Latina women instead. My heart and mind are all a flutter in anticipation of that answer.

[Gary Farber]

"The old Latina comment is not all that bad but it does beg the question...."

No, it doesn't.

[someotherdude]

Russell stands for truth, justice, and the American way. No snark. Russell is the dude.

Posted by: OCSteve | May 30, 2009 at 04:58 PM

"Yeah, well, you know, that's just, like, your opinion, man."

[Hartmut]

Well, if old Latina women of the 18th century had written the constitution, it would definitely have looked quite different (and would have contained significantly more references to the Virgin Mary than the document we know) ;-)
---
I'd also say that Sotomayor will recuse herself, if Ricci reaches the court after her confirmation.

[Ed]

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.

Because they know so little about Sotomayor, and they know so little, period. Generally people talk about what they know, and when they limit their criticism of someone in public life to one extremely limited thing, it's because they know very little else to talk about.