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Understanding Judge Sotomayor’s Record

Understanding Judge Sotomayor’s Record

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.

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14 comments

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7:24AM PDT on Jul 22, 2009

I can not make an definate opinion, other than to say that reading what I did of her resume she appears to be honest. There is no way to decide what she intends on accomplishing once appointed as I am sure she will be sworn to uphold the laws. As for those who are afraid that white Americans should be concerned, I think a little balancing of rights for all people should scare you because it is unchartered territory.

5:56AM PDT on Jul 21, 2009

Bravo for Judge Sotomayor! It is an honor the sole opportunity to be considered to be a judge of the Supreme Court. Hope she made it. When you are in a position like this one a lot of comments, sometimes ill ignorant comments, will appear in the media and the internet. People always have an opinion even if they don’t have the facts. Media is not impartial, the majority of the time they have a special way to drive you to what they like you to think. It is important to see programs in which there are different points of view with people that should know about the Justice system. I condemn those racist comments as the one from Carol in this forum and ignorant comments of those of Michelle. United States is a nation constructed on immigrants from all over. Even the white North Americans are from Europe. The only pure race in US is the Native Americans, they should rule, because this is their native land. The world as it is a mix of all races and in the 21st century we should grow and accept that all races are equal.

About Michelle’s comment, yes everyone can write a resume, but you have to back up that resume. For me was very impressive that Judge Sotomayor studied in Princeton and in Harvard universities, two of the most impressive and demanding universities in the US. The experience and record that she has, please read this article. It seems that some of the persons that posted comments did not read this article. It was written by an attorney. Her

10:03AM PDT on Jul 19, 2009

I am far from convinced that anything in the record of Sotomayor's decisions on specific lower court cases can be predictive of how she will rule as a Supreme Court Justice. As with so many nominees in recent years, we really have no way of knowing and may indeed be surprised by her taking a completely different position than expected in the liberal/conservative balance of the bench. I suspect the reason for this is in the unique function of the Supreme Court and the roles that the nine top Justices play in our justice system. Just the fact that each Justice is one of only nine at the peak of our hierarchical system necessarily changes the context of any decision and must likewise change the perspective of the decision maker. As a judge on the Federal Court of Appeals, Sotomayor comes from one of 13 Courts that are comprised of a varying number of seats. The 2nd Circuit is made up of 10 active seats and hears cases brought within a limited geographic area. The rules and roles, terms and implications are so different between the two top tiers of our court system that if any Justice's thinking does not change in some way when they move up, then they are most likely NOT doing their jobs! For this reason we need to look more at a nominee's intellectual capacity, adaptability and temperament than at specific outcomes of prior cases. To do otherwise is to promote politics over justice which is completely inappropriate.

12:08PM PDT on Jul 18, 2009

She is very dangerous all the White Americans had better watch what is going to happen because she is going to take all of our rights away from us.

9:55PM PDT on Jul 16, 2009

ANY ONE CAN WRITE A RESUME! SHE IS HORRIBLE!!!!

9:00PM PDT on Jul 16, 2009

I believe she will make a lot of difference to the Court and all beneficial. The Senate Hearings so far have been Senators showing off. So we have not heard that much about her decisions. But she does have a lot of experience and there should be another woman on the Court.

12:22PM PDT on Jul 16, 2009

I strongly support her work and will continue supporting it people before you judge or spread your venemnous words go and read her resume im tire of this judging

11:55AM PDT on Jul 16, 2009

No, no , no, no, she's dangerous...enough said!

10:46AM PDT on Jul 16, 2009

Don't like enough of her rulings and quips to view her as a self seeking, politically sly being versus someone interested in justice for all us citizens, the land, other species or even freedom of choice.

9:43AM PDT on Jul 16, 2009

With what I've been hearing about Judge Sotomayor, I am deeply concerned about the decisions she has come up with. Granted, each justice on that court has voted contrary to the way I would have like to have seen him/her vote on any given issue at one time or another. The difference between someone like say John Paul Stevens or even John Roberts is that the two in their own respective way have some level of character. I can't say the same for Ms. Sotomayor. Her alliances with groups like La Raza, a group hell bent on destroying America piece-by-piece, bothers me greatly along with her supposed sayings that white males should be castrated! I feel she is more dangerous than Robert H. Bork! That's coming from someone who found Bork to be unfit to serve on the high court and was overjoyed when he was defeated! As such, I think it speaks volumes! Sadly, I don't see Sotomayor facing the same level of resistance.

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