Academic

Gilbert on Empathy & Sotomayor's Immigration Decisions

By Lawrence Solum

Lauren Gilbert (St. Thomas University School of Law) has posted The 26th Mile: Empathy and the Immigration Decisions of Justice Sotomayor on SSRN. Here is the abstract:

At the behest of members of the Hispanic National Bar Association (HNBA'), this author was asked to review and analyze Judge Sotomayor?s immigration decisions. The analysis was incorporated into a report to the HNBA, which was submitted to the Senate Judiciary Committee and is part of the official record. This Working Paper builds on the analysis of Justice Sotomayor?s immigration decisions prepared for that report, while addressing the lack of attention to immigration issues during her confirmation hearing. Throughout the confirmation hearings, Republican senators accused her of judicial activism and reverse racism, focusing almost exclusively on her 'wise Latina' comment at a Berkeley conference, the Ricci case involving the New Haven firefighters, and President Obama?s comments regarding the importance of judicial empathy in a Supreme Court justice. There was little discussion, however, of her other decisions, particularly in the area of immigration law. Yet on innumerable occasions, Justice Sotomayor had addressed issues involving the rights of immigrants and asylum seekers and the duties of federal officials in deciding immigration issues. Although barely touched on during the hearings, it is a particularly ripe area of the law for exploring her judicial philosophy and the merit of claims of bias and judicial activism. A native New Yorker born to Puerto Rican parents, Sonia Sotomayor was a U.S. citizen at birth and not technically the child of immigrants. Nonetheless, her parents? experiences in coming to America paralleled those of many immigrant families.

This article will examine a number of the published immigration decisions of Justice Sotomayor that shed light on her judicial philosophy. It will use the 2008 case of Mendez v. Mukasey to frame her current approach. It will then look at a number of her decisions in different areas, including asylum and refugee law, the immigration consequences of crimes, citizenship law, motions to reopen, and criminal prosecutions for immigration violations. It will pay particular attention to her judicial philosophy in the area where immigration law and criminal law intersect. In this area, rather than allowing empathy to color her decision-making, she has used the categorical or modified categorical approach. She has tended to decide these cases behind what might be described as a veil of ignorance of the underlying circumstances. She has frequently justified the categorical approach as leading to fair and impartial outcomes, but, as this section will show, it has often led to harsh results.

Finally, this article will re-evaluate her immigration decisions in the context of some of her early statements regarding the impact of her gender and Latina identity on her decision-making. Many of these statements, including her Berkeley lecture, were made early in her career on the Second Circuit. Her immigration decisions over the last ten years tend to demonstrate an evolution in her thought processes, as her analytical approach became more defined by the limits of the law than by its possibilities. What Justice Sotomayor will do in the 26th mile of the judicial marathon and how her judicial philosophy will evolve on the U.S. Supreme Court can be gleaned from her immigration decisions over the last decade.

Full post as published by Legal Theory Blog on September 02, 2009 (boomark / email).