Posted by Jonathan Adler:
Judge Sotomayor & Race Cases:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243909272
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 [1]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, [2]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 [3]Hayden v. Pataki, a Voting Rights Act challenge to felon
disenfranchisement in which Judge Sotomayor dissented (see [4]here),
it may present an incomplete picture.
References
1.
http://www.scotusblog.com/wp/judge-sotomayor-and-race-results-from-the-full-data-set/
2. http://www.scotusblog.com/wp/the-politics-of-the-sotomayor-nomination/
3.
http://moritzlaw.osu.edu/electionlaw/litigation/documents/04-3886-pr_opn.pdf
4.
http://sentencing.typepad.com/sentencing_law_and_policy/2009/05/judge-sotomayor-on-textualism-and-voting-rights.html
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