Federal Judiciary

Judge Sotomayor and Race

By Akin Gump Supreme Court Practice Group

It is remarkable how much ink has been spilled on Sonia Sotomayor’s ethnic background rather than her legal background.

From the moment the nomination was announced, talking heads have called the President’s choice one based on “pandering to Hispanics” or “checking the box” for minorities. Some have suggested that a white man with her resume would not be so highly praised or that her academic successes were nothing more than affirmative action. Innumerable news features on Sotomayor have described her nomination in terms of identity politics or a symbol of rapprochement to the Hispanic community.

In the rush the find Sotomayor’s “biases,” media personalities and conservative opponents latched onto her Berkeley speech on “A Latina Judge’s Voice,” which provoked Rush Limbaugh’s accusations that she is a “reverse racist” and Newt Gingrich’s now-infamous “tweets” calling for her to withdraw. Instead of looking to the legal precedent in the Second Circuit’s Ricci opinion, the Judicial Confirmation Network said “[Sotomayor] reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety.”

Anything “ethnic,” from the food she eats to the way she pronounces her last name, has been discussed as possibly influencing her jurisprudence. The mainstream media has highlighted her group affiliations,  college comments, and a law school discrimination complaint as evidence of her racial preference possibly trumping pragmatism. And then there’s been the blatant race baiting: most shockingly,  Rep. Tom Tancredo today called the civil rights advocacy group La Raza, of which she is a member, “a Latino KKK without the hoods or the nooses.”

It seems to me that there is an infinitely simpler and more accurate way of figuring out whether Judge Sotomayor decides cases involving race fairly and dispassionately - read her decisions.  So I did:  I am in the midst of reviewing every single race-related case on which she sat on the Second Circuit.

There are roughly 100.  They cover the gamut from employment discrimination to racial bias in jury selection.  I decided that I would stop and write an interim report once I got through her 50 most recent race-related cases other than Ricci because the numbers are sufficiently striking and decisive.  Here is what I found.

In those 50 cases, the panel accepted the claim of race discrimination only three times.  In all three cases, the panel was unanimous; in all three, it included a Republican appointee.  In roughly 45, the claim was rejected.  (Two were procedural dispositions.)

On the other hand, she twice was 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.

In the 50 cases, the panel was unanimous in every one.  There was a Republican appointee in 38, and these panels were all obviously unanimous as well.  Thus, in the roughly 45 panel opinions rejecting claims of discrimination, Judge Sotomayor never dissented.

It seems to me that these numbers decisively disprove the claim that she decides cases with any sort of racial bias.

I also looked at whether there was anything nefarious in the failure of the Ricci panel to publish a substantial opinion.  From the pool of 50, the panel affirmed a district court’s decision rejecting a claim of employment discrimination or retaliation (as in Ricci) 28 times; it did so by unpublished order in 24.  Whatever one thinks of the argument that the issues in Ricci deserved more attention than the panel gave them, the decision not to publish an opinion seems to have been pretty commonplace.

When I’m done with the study, I will update the numbers and publish a database with all of the decisions.

Full post as published by SCOTUSBLOG on May 29, 2009 (boomark / email).