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"Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking."

Says Tom Goldstein, who's done the work, reading all the cases relating to race:

[I]n 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 participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims.

So the reverse-discrimination claim is one of the very few cases where she stood out from the other judges. It's notable that that was a case that turned on free speech rights ? and the speech in question was speech Sotomayor presumably disgrees with vehemently:

Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), involv[ed] an employee of the New York City Police Department who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he responded by mailing back racist and bigoted materials. On appeal, the panel majority held that the NYPD could terminate Pappas for his behavior without violating his First Amendment right to free speech. Sotomayor dissented from the majority?s decision to award summary judgment to the police department. She acknowledged that the speech was ?patently offensive, hateful, and insulting,? but cautioned the majority against ?gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.? In her view, Supreme Court precedent required the court to consider not only the NYPD?s mission and community relations but also that Pappas was neither a policymaker nor a cop on the beat. Moreover, Pappas?s speech was anonymous, ?occur[ring] away from the office on [his] own time.? She expressed sympathy for the NYPD?s ?concerns about race relations in the community,? which she described as ?especially poignant?....

But she upheld the rights of the employee as grounded solidly in the constitutional law of free speech. So let's think clearly about the real working of this "empathy" Obama has touted. Stop jumping ahead to the assumption that Sotomayor stretches the law to decide cases in favor of people who tug her heart strings and look at the record.

Full post as published by Althouse on May 31, 2009 (boomark / email).