Judge Sotomayor & Race Cases:

Judge Sotomayor's participation in Ricci v. DeStefano (the New Haven firefighters case), and her "wise Latina justice" speech have fueled speculation about her approach to cases involving race. To address such concerns, SCOTUSBlog's Tom Goldstein reviewed all of the cases involving race in which she participated on the Second Circuit. His conclusion:

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. . . . Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

This review is worthwhile, and certainly shows Sotomayor has been a relatively mainstream judge on racial issues during her time on the Second Circuit. But does it show more than that? Goldstein's SCOTUSBlog colleague, David Stras, comments:

This is an extremely comprehensive study and I do think it is probative of her jurisprudence, but I disagree with Tom that it shows that it is “absurd to say that Judge Sotomayor allows race to infect her decisionmaking.” The statistics that Tom describes are essentially descriptive, similar to the type of information you would get if you were to run the mean, median, range, standard deviation of a statistical sample. While I tell the Ph.D. students that I supervise on dissertation committees that descriptive statistics are extremely helpful, they can only accomplish so much. In this case, we know that when Judge Sotomayor was on a panel of the Second Circuit, the panel upheld a claim of discrimination about 10% of the time. (It would also be helpful to know how Tom defined a “race-related” case, which is certainly subject to reasonable disagreement.) To the average observer (including me), this statistic does not seem to be out of the mainstream, but the only way to know for sure is if we compare her dispositions to the disposition rates of other judges, both within and beyond her circuit. For instance, it is possible that claims of discrimination are upheld at a rate of only 5% by the average circuit judge in the federal judiciary, in which there could be an argument that Judge Sotomayor tends to uphold claims of discrimination, on average, twice as often as her colleagues. (By the way, I certainly do not expect Tom to conduct this type of inquiry as this is the type of paper that can take an academic a year or more to produce.) What is more helpful is to actually read those opinions, as Tom suggests in another post. If the opinions that Tom read are correct on the law, then there really cannot be even a credible argument that Sotomayor is somehow biased in cases involving race.

I agree with Stras' qualifications and critique — I raised similar concerns to Tom Goldstein directly. This is not to say there is anything problematic in her record in these cases, just that a descriptive review of the cases can only show so much. Furthermore, insofar as the review excludes some cases, such as the en banc review of Hayden v. Pataki, a Voting Rights Act challenge to felon disenfranchisement in which Judge Sotomayor dissented (see here), it may present an incomplete picture.

Another en banc race-related case omitted from Tom Goldstein's review is Brown v. City of Oneonta, in which Judge Sotomayor dissented from the denial of rehearing en banc. It's an interesting case, which I may blog on later. Ed Whelan has a comment on the case here.


Brown v. City of Oneonta:

Given interest in how Judge Sotomayor has approached cases involving race, the case of Brown v. City of Oneonta is worth a look. The panel opinion (as amended) is at 221 F.3d 329 (2nd Cir. 2000). The opinions respecting the denial of reharing en banc are at 235 F.3d 769 (2d Cir. 2000). Judge Sotomayor was not on the initial panel, but she did join most of Judge Calabresi's opinion dissenting from the denial of rehearing en banc in this interesting case. While this opinion may be less probative than one Judge Sotomayor authored herself, her participation in this case could help shed light on her views of the proper application of the Equal Protection Clause. It is also interesting to compare the rationale for en banc review endorsed by Judges Calabresi and Sotomayor in this case with their arguments for denying en banc review in Ricci v. DeStefano, another potentially divisive case involving race.

The full post including excerpts from the relevant opinions are below the jump.


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: