Legal News

Jeffrey Rosen?s Second Stab at Sotomayor

By Ashby Jones

The New Republic’s Jeffrey Rosen took some serious heat for his first piece on Supreme Court nominee Sonia Sotomayor. Penned in early May, before she was nominated, Rosen cited anonymous sources who called Sotomayor “not that smart and kind of a bully on the bench.” The backlash was swift. On Salon, for instance, Glenn Greenwald called the way Rosen assessed her as “reckless and just journalistically corrupt.” (Rosen later explained himself here.)

At Time.com, Rosen takes another stab at Sotomayor, focusing this time not on her intellect, but on her views on race. Race will almost invariably come up at her confirmation hearings, which start July 13. To be trotted out by Republicans: her 2001 speech at Berkeley and her decision in Ricci v. DeStefano — the New Haven firefighter case. Democrats will likely counter with the oft-cited statistics presented by Scotusblog’s Tom Goldstein — that of the 96 race-related cases other than Ricci that she heard as a member of the Second Circuit, she “rejected discrimination-related claims by a [ratio] of roughly 8 to 1.”

So Rosen attempts to answer this question: “what does she actually believe?” He concludes:

An examination of Sotomayor’s career supports the idea that on the bench, she has been a racial moderate, not a radical. At the same time, her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed.

Rosen looks to a broader study of her opinions:

Here she appears to be an incrementalist rather than a radical of any stripe. In a survey of Sotomayor’s 226 majority opinions, Stefanie Lindquist, a law professor at the University of Texas at Austin, found that only 38% could clearly be characterized as liberal, while 49% could clearly be considered conservative. When the criminal cases (in which appellate judges are encouraged by Supreme Court precedent to be relatively pro-prosecution) are taken out of the mix, Sotomayor’s record looks about 46% liberal and 36% conservative.

But wait, the plot thickens. Writes Rosen:

But it’s in dissents rather than in majority opinions that appellate judges often reveal their true feelings. Of Sotomayor’s 19 published dissents, only three dealt clearly with racial issues, and they pointed in different directions. . . . Sotomayor does not appear to be an outlier in race cases, although she seems to have no overarching theory about how to decide them. For that reason, she seems unlikely, in the short term, to affect the balance on the Roberts Court in cases involving race. . . . On most cases, Sotomayor can be expected to assume David Souter’s current spot as the fourth member of the liberal bloc.

Granted, from all this, it’s hard to draw any hard and fast conclusions, which is why he can be forgiven, in our view, from coming to a conclusion that is decidedly undecided:

If Sotomayor is confirmed, as expected, the only thing one can confidently predict is that the cases involving race and diversity that she will confront are very different from the ones we are thinking about today. In that sense, the evolution of Sotomayor’s thinking in the years ahead may be more consequential than what she has said in her past.

Full post as published by Law Blog - WSJ.com on June 11, 2009 (boomark / email).