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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.

Related Posts (on one page):

  1. Goldstein on Sotomayor and Race Cases (Again):
  2. Brown v. City of Oneonta:
  3. Judge Sotomayor & Race Cases:
Cato The Elder (mail):
Many people think that the Ricci case is but an isolated incident, and that it is only serving a convenient flash-point for conservative opposition to Sotomayor. Not so! In fact, there is a whole slew of cases all across the country that are continually bumping up against the Equal Protection issues raised by the plaintiffs. Apparently, the city of Memphis is fighting the 4th discrimination lawsuit brought by injured whites just in the last 10 years! I believe the latest group also filed an amicus brief in support of the New Haven firefighters.
6.16.2009 3:08pm
Kent Scheidegger (mail) (www):
Speaking of "unsubstantiated charges of racism," one such charge was contained in the 1981 death penalty memo signed by Sonia Sotomayor, noted here. We are still waiting for her statement on whether she still believes this.
6.16.2009 3:43pm
MarkField (mail):
From a statistical point of view, your argument is nonsensical. Small sample sizes are unreliable, yet you reject the large sample and analyze the unrepresentative subset of the data.

The only proper conclusion to draw is this: technical analysis of Sotomayor's opinions isn't likely to tell us much.
6.16.2009 4:08pm
AF:
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 . . . .

Then why didn't she side with the plaintiffs in Ricci?
6.16.2009 4:09pm
David M. Nieporent (www):
Because -- consistent with the notion that she accepts aggressive and innovative arguments in race cases -- she'd prefer a far-fetched disparate impact claim to a straightforward discrimination claim?
6.16.2009 4:13pm
AF:
There was a disparate impact claim in Ricci? Missed it.
6.16.2009 4:16pm
RPT (mail):
After seeing the same arguments made again and again by the same people against SS, I'm starting to miss the Obama birth certificate posts from last year. There is no meeting of the minds here, only repetition. How long will it be before until 24.com posts re her past associations?
6.16.2009 4:25pm
Crunchy Frog:

Then why didn't she side with the plaintiffs in Ricci?

Because they were the wrong color, silly. Racism against white folks is impossible, by definition.
6.16.2009 4:33pm
David M. Nieporent (www):
There was a disparate impact claim in Ricci? Missed it.
Sure. By the city. It was used as a defense rather than a claim for recovery, which makes it even more "aggressive and innovative."
6.16.2009 4:46pm
sbron:

"As I've blogged previously, the racist charge is outrageous and unjustified."



What would a Latino/a have to do to convince you that they were a racist? If the ugly language of racial supremacy in the wise Latina and "Latina Soul" are not sufficient to indicate she is a racist, can we at least admit Sotomayor is a bigot?
6.16.2009 5:09pm
Leo Marvin (mail):
JA,

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.

Apparently there's no question in your mind. Listen to talk radio, and you'll hear something very different from the activist base opposing her nomination. The Sotomayor-as-incompetent-racist argument is no straw man.
6.16.2009 5:20pm
Terrivus:
"Given my high opinion of Goldstein's work,"

This is a serious question: why do you have a "high opinion" of Goldstein's work? Yes, he provides a great service by operating SCOTUSblog. And he gets a lot of cert petitions granted. But he's not highly regarded by the Justices on the Court, he has a mediocre (or worse) record once his petitions actually get granted, and for all the inroads he's made into law school clinics and Supreme Court work, he's never once been able to land a SCOTUS clerk.

I'm just wondering what the basis is, then, for your belief that Goldstein's "work" is all that admirable.
6.16.2009 6:57pm
frankcross (mail):
The research pretty much confirms this post. A sophisticated analysis by Josh Fischman estimates that circuit court judges vote about 12% of the time against their true preferences, in order to produce unanimity. And ideology explains a much smaller percentage of circuit court votes than Supreme Court votes. The evidence does suggest that she's not an extremist, but I think it suggests that she will be a liberal vote on most of these issues at the USSC. As would be expected from a nominee of a Dem President.
6.16.2009 7:42pm
24AheadDotCom (mail) (www):
Apparently SS's past associations are of some worry to Dems, since the sockpuppets are swinging into action. See my site for more information on one of those past associations than you'll hear from almost anyone else.

As for calling her a "bigot" or a "racist", that's generally worthless. It's better to point out that she's completely ethno-centric, then enumerate all the things she's said and done along those lines. "She said this, she said that, she joined this group, etc. etc."

It would also be helpful to have a "Robert Krulwich-style" video laying out the issues in Ricci.

Instead, our last defense against an NCLR member on the highest court in the land is Orin Kerr.
6.16.2009 8:52pm
RPT (mail):
24.com

Well, you got here pretty quickly. What exactly is a "sockpuppet"? Is that some kind of slur?
6.16.2009 9:17pm
Public_Defender (mail):
You expect too much of Goldstein. His analysis of decisions is top notch, but as a frequent advocate before that court, he can't write candidly about the justices (or nearly-certainly-soon-to-be justices).
6.17.2009 5:59am
Benjamin Davis (mail):

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


How does her circuit compare to other circuits on these issues? Like the 4th or the 9th?

I think that "aggressive and innovative" in one circuit, may be the norm in another, or may be radical in a third.

To make a Supreme Court analogy, compared to Scalia she may be aggressive. Compared to O'Connor about the same. Compared to Thurgood Marshall, maybe she is passive.

I guess what I am saying is that given the extreme narrowness of the methods of the law for seeking racial justice in this country, I find it a bit perplexing that the words "aggressive and innovative" are even used in this context.

Best,
Ben
6.17.2009 8:15am
byomtov (mail):
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.

But you have to decide whether the law was unclear before you look at her decision in the case. You can't just pick cases where she differed. You still have to look at all the cases.

Further, the whole business of categorizing laws as clear or unclear is a little dubious. What's clear to one judge is unclear to another. If you make this determination from an ideological point of view that differs from Sotomayor's of course you are going to come to the conclusion you came to.
6.17.2009 10:26am
Cato The Elder (mail):
I know, byomtov, we can't anything about anything because we hold different views.

You know, I can only feel the way Justice Black did about the First Amendment. "No law" means no goddamn law, those semantics are pretty much simple universals to me. If a particular judge can't agree with the American voters on the commonly accepted definition of "racial quota", then perhaps he/she ought to be writing of deconstructionist postmodernism at Harvard rather than being installed on the Supreme Court.
6.17.2009 10:54am
Cato The Elder (mail):
..."we can't say"...
6.17.2009 10:55am
byomtov (mail):
No, Cato. That's not what I said.

What I said was that to do the analysis JHA describes you have to begin by identifying cases where the law was unclear without knowing how Sotomayor ruled. So you have to look at all the cases. Then you have to take into account that what is clear to you may be ambiguous to someone else. So you have to be careful about your classification.

I mean, if you want to take the position that the law is always absolutely clear, and that conservative judges always understand it perfectly, go ahead, but that's not really very sensible.
6.17.2009 11:07am

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