Sotomayor Does Not Make Race-Biased Decisions
See Update below:
Tom Goldstein, who writes at SCOTUSblog, has completed a study of all race-related cases in which Sonia Sotomayor participated. Here is what he comes up with:
Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.
Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.
Of the roughly 75 panel opinions rejecting claims of discrimination, Judge Sotomayor dissented 2 times. In Neilson v. Colgate-Palmolive Co., 199 F.3d 642 (1999), she dissented from the affirmance of the district court’s order appointing a guardian for the plaintiff, an issue unrelated to race. In Gant v. Wallingford Bd. of Educ., 195 F.3d 134 (1999), she would have allowed a black kindergartner to proceed with the claim that he was discriminated against in a school transfer. A third dissent did not relate to race discrimination: In Pappas v. Giuliani, 290 F.3d 143 (2002), she dissented from the majority’s holding that the NYPD could fire a white employee for distributing racist materials.
As noted in the post below, Judge Sotomayor was twice on panels reversing district court decisions agreeing with race-related claims – i.e., reversing a finding of impermissible race-based decisions. Both were criminal cases involving jury selection.
The numbers relating to unpublished opinions continued to hold as well. In the roughly 55 cases in which the panel affirmed district court decisions rejecting a claim of employment discrimination or retaliation, the panel published its opinion or order only 5 times.
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. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She particulated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.
Which, of course, won’t stop a single anti-Sotomayor bigot from continuing to insist she does.
Update: Actually, my post title could have benefited from a bit less haste: I just read Michael Stickings’ response to Goldstein’s analysis, and he makes an excellent, and very important, point: Sotomayor’s record of decisions in race-related cases does not necessarily show that said decisions were not racially biased — that would depend on whether the particular decision was the correct one given the fact set. The significance of the pattern Goldstein discovered is that her rulings do not mark her out from her colleagues in any way; i.e., she is not an “outlier.”
Michael also points out that it’s a mistake to conclude that taking issues of race into consideration is always a bad thing:
I’m not sure “infect” is the right word to use here. There may very well be times (and cases) when not racism but a sensitivity to race and racism (perhaps based on one’s own experienes) should be included in one’s decision-making. And it may well be that Sotomayor was wrong to side with her colleagues on some of these cases. Perhaps, either in general or with respect to specific cases, she and her colleagues were overly insensitive to claims of discrimination.
In other words, it is not proof of a sound legal mind, or of being right, that one generally rejects discrimination claims. Instead, it could be proof that the system, and the judges within it, are not adequately sensitive to discrimination.
Still, Goldstein’s findings do effectively refute the (discriminatory) claims of Sotomayor’s critics on the right — and there are many of them — that she is racist, and that she allows her own identity as an Hispanic woman to shape her legal opinions. Of there, there is simply no evidence at all, and, to the contrary, if there is actual evidence of anything, it is that she is very much like most other judges on the federal benches, for better and for worse.
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12 Responses to “Sotomayor Does Not Make Race-Biased Decisions”
hey, don't confuse us with facts, darn liberal.
This conerns me, “In Pappas v. Giuliani, 290 F.3d 143 (2002), she dissented from the majority’s holding that the NYPD could fire a white employee for distributing racist materials.”
I don't know any other details… But I would hope that this did not involve the distribution of blatantly racist materials in the work environment.
There is a limit how outlandish a Federal District judge or an appellant judge can be. They know if they were blatantly racist, they would be overturned and would become a lighting rod of protests. However, the Supreme Court justice cannot be overturned by anyone else. Does anyone believe that she would have sided with Jennifer Gratz versus the State of Michigan?
Put that with her statements in front of very liberal law students. If was not that he said she should really not be advocating that judges making policy. It was the laughter of the audience who believe that yes, judges should make policy and should be able to discriminate.
dear GreenDreams, thank you for making me laugh today, as I am taking a break from trying to hang a fricking metal pipe clothes rod in a dark closet that has no interior light and two sliding doors that cannot be taken off by a weakling like me. lol
Your dry wit, is funny.
dr.e.
SD, I thought you were smarter than that. Judges DO clarify laws in a way that, as Alito said, “make law”. In case you're not as well versed in the law as I thought, it works like this: Congress passes a law with language that is necessarily vague, for instance that certain decisions must be made by someone “qualified by training and experience” to make such a decision. The agency makes a rule based on the law (it's called “the rule-making process”). Enforcement actions follow and defendants turn to the courts to see if the agency rules over-reached with respect to the law. The decisions of the judges set precedent that becomes a clarification of the law. The appeals courts “make laws” even moreso in some cases than the agencies, who also “make law”.
Are you really unaware of that? This happens every single day in courts all across this nation.
thanks, dr e, and you're welcome
Gd,
What the judges should do is rule that the laws and regulations either violate other laws or they need to be clarified and then return them to the legislature to change. Judges, instead, tell the government what to do. The classic example are judges who order schools to come up with desegregation plans and have them court approved instead of forcing the executive branch to do their job.
Sotomayor is the type of nanny state, social engineer who will love using the courts to tell people what to do if given the chance. Just look at her body lauguage when talking about setting policy and the sneering laugh at the end. The American people do not want five judges setting national policy that Congress and the President will be unable to stop.
No one is going to agree with every judge, even the “best” legal minds can disagree. (One reason why I think it's so absurd when people state “facts” about legalities on complex situations) An important fact though is the “outlier” issue which would concern me much more than the admitedly unadvised statement she made.
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SD, that's absurd. It is simply not possible for Congress to insert into every bill all the minutiae that is added by agencies in the rulemaking process. You really are unaware of how it works. I'm not going to try to educate you here.
GD,
Actually I know exactly how it work. I work in the field of regulatory compliance. Congress write incredibly vague statues and usually give some regulatory body the authority to propagate regulations (such as the EEOC) implementing various Civil Rights Acts and Equal Employment Acts. Now ever though during the hearings on those Acts, Congress stated that they would never require race based quotas. However, the EEOC them propogates regulations that virtually require quotas to prove that a company is not discriminating. Then the courts come in and find that companies that did not have quotas are violating the regulations and must establish the regulations.
It would be much better if the courts kick it back to the legislature and say, either pass a rule that mandates quotas and base specific rules banning quotas.
So why was the same point not considered when Alito was called a racist? Obama himself said that the Democrats should have gone on the offensive in turning public opinion against him for his decisions being “un-American”, based on the same sort of statistical analysis of the number of times he ruled in favor of institutions over individuals or majority class plaintiffs over minorities.