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.