Posted by Jonathan Adler:
Are Sotomayor's Opinions Too Detailed?
http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1247156856
The Washington Post has an [1]interesting report on Judge Sotomayor
today based upon a fairly extensive review of her opinions. Two
aspects of the story caught my eye. First, the article suggests that
there is a problem with teh high level of factual detail in Judge
Sotomayor's legal opinions.
During nearly 11 years on the federal appeals court in New York,
Sotomayor has made herself an expert on subjects ranging from the
intricacies of automobile mechanisms to the homicide risks posed by
the city's population density. Her writings have often offered a
granular analysis of every piece of evidence in criminal trials,
and sometimes read as if she were retrying cases from her chambers.
Legal experts said Sotomayor's rulings fall within the mainstream
of those by Democratic-appointed judges. But some were critical of
her style, saying it comes close to overstepping the traditional
role of appellate judges, who give considerable deference to the
judges and juries that observe testimony and are considered the
primary finders of fact.
"It seems an odd use of judicial time, given the very heavy
caseload in the 2nd Circuit, to spend endless hours delving into
the minutiae of the record," said Arthur Hellman, a University of
Pittsburgh law professor and an authority on federal courts.
This struck me because Judge Sotomayor's attention to detail is
typically cited as a virtue, rather than as a fault. As one attorney
quoted in the story noted, one would expect Judge Sotomayor to win
praise for the thoroughness of her opinions.
The Post story also sought to offer an independent assessment of Judge
Sotomayor's ideology based upon a review of opinions in which she
differed with some or all of her colleagues on the Second Circuit.
To examine the record of Sotomayor, whose Senate confirmation
hearings begin Monday, The Post reviewed all 46 of her cases in
which the 2nd Circuit issued a divided ruling, nearly 900 pages of
opinions. Although Sotomayor has heard about 3,000 cases, judicial
scholars say split decisions provide the most revealing window into
ideology because in such cases the law and precedent are often
unclear, making them similar to cases heard by the Supreme Court.
President Obama, who nominated Sotomayor to replace retiring
Justice David H. Souter, has said Supreme Court justices will be in
agreement 95 percent of the time.
Sotomayor's votes in split cases were compared with those of other
judges through a database that tracks federal appellate decisions
nationwide, a random sampling of 5,400 cases. The database codes
decisions as "liberal" or "conservative" based on what its creator,
University of South Carolina political scientist Donald Songer,
says are common definitions. Votes in favor of a defendant, for
example, are classified as liberal, while those supporting
prosecutors are called conservative.
Sotomayor's votes came out liberal 59 percent of the time, compared
with 52 percent for other judges who, like her, were appointed by
Democratic presidents. Democratic appointees overall were 13
percent more liberal than Republican appointees, according to the
database analysis.
There's nothing particularly surprising in these results -- anyone who
has reviewed a substantial portion of Judge Sotomayor's record know
that she is likely to be on the liberal end of the spectrum on most
issues that divide jurists along traditional ideological lines. Still,
it is interesting (and heartening) that the Post sought to do its own
analysis.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/08/AR2009070804211_pf.html
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