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The numbers relating to unpublished opinions continued to hold as well.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.