As we move into the second full day of questions for Supreme Court Justice nominee Judge Sonia Sotomayor, the lack of attention to her actual judicial record, as opposed to the focus on a handful of public statements, makes it difficult to understand her constitutional temperament. Thankfully the Brennan Center for Justice published an Executive Summary of Judge Sotomayor’s record ruling on constitutional issues, and the results are clear: Judge Sotomayor is far from an activist judge.
In compiling the summary, attorneys and legal interns at the Brennan Center analyzed every 1194 constitutional cases decided by the Second Circuit during the ten years of Judge Sotomayor’s service. Her decision making was compared to the record of her colleagues on the Second Circuit, including looking at how often she upheld the action of another branch of government, such as a statute or other governmental action (like that of police departments and municipalities) and how often she deferred to the lower court or agency under review. The Brennan Center also analyzed whether Judge Sotomayor’s rulings varied from other Second Circuit justices in substantive areas of law such as civil rights, criminal law, due process or the First Amendment. The full list of Brennan Center criteria can be found here.
The consensus reached after this comprehensive review? Judge Sotomayor has been in agreement with her colleagues nearly 100% of the time. 94% of her decisions have been unanimous. For those that were not, 98% of the time Judge Sotomayor voted in the majority on constitutional cases. Even more striking, Republican appointees have agreed with her decision to hold a challenged governmental action unconstitutional in nearly 90% of the cases, and in the occasions when she has voted to overrule a lower court or agency, those decisions were unanimous over 93% of the time.
So what do all these numbers really mean, given the focus on her 80% rate of reversal at the United State Supreme Court. Take the Ricci case for example. In Ricci the Second Circuit applied the legal standard at hand– respecting settled law and judicial precedent. The Robert’s Court ignored that precedent and created a new legal standard- a change in the law. Other times claimants’ procedural flaws, such as a missed statute of limitations, prevented the Court from addressing substantive issues such as whether or not a government taking was constitutional.
Presuming her confirmation, it means that we can expect nothing to change in the current makeup of the Court on most constitutional issues. Given her rate of deference to precedent, it is safe to say that if the Ricci standard existed at the time the Second Circuit heard the case that Judge Sotomayor would have applied that new standard. One can hardly fault her for lacking the ability to predict a total departure from precedent by Chief Justice Roberts and Justice Kennedy. Furthermore, given her decidedly pro-prosecutorial bend on criminal law issues, she may find herself siding with the Chief Justice more often than with the predictable minority votes by Justices Ginsburg and Stevens. So as we sit through at least another two days of racially-charged questioning concerning her “temperament” at least the Brennan Center has provided us some substance and context to this “wise Latina” because it is clear those that have found offense in that comment are not interesting in such substance.