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Tilting at Windmills

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May 30, 2009
By: Hilzoy

Sotomayor: Actual Facts!

As more or less everyone has already noted, a lot of people have been claiming that Sonia Sotomayor is a racist, would decide cases based on racial solidarity rather than on the law, and so forth. One natural way to check this would be to examine her actual record. She has, after all, been a judge for quite a while, so it should not be all that hard to see how she actually makes decisions.

Over at SCOTUSBlog, Tom Goldstein decided to do just that. He has been reading through all of Sotomayor's opinions in cases involving race. He promises to write more about them tomorrow, but here is what his analysis shows:

"Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent's point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.

Of the roughly 75 panel opinions rejecting claims of discrimination, Judge Sotomayor dissented 2 times. In Neilson v. Colgate-Palmolive Co., 199 F.3d 642 (1999), she dissented from the affirmance of the district court's order appointing a guardian for the plaintiff, an issue unrelated to race. In Gant v. Wallingford Bd. of Educ., 195 F.3d 134 (1999), she would have allowed a black kindergartner to proceed with the claim that he was discriminated against in a school transfer. A third dissent did not relate to race discrimination: In Pappas v. Giuliani, 290 F.3d 143 (2002), she dissented from the majority's holding that the NYPD could fire a white employee for distributing racist materials.

As noted in the post below, Judge Sotomayor was twice on panels reversing district court decisions agreeing with race-related claims - i.e., reversing a finding of impermissible race-based decisions. Both were criminal cases involving jury selection. (...)

In sum, in 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 particulated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking."

I honestly don't know why so many people focus so much attention on their somewhat overwrought interpretations of one line in a speech and so little attention on ascertaining what kind of judge Sonia Sotomayor has been. Her decisions are not classified documents. They are public, and anyone can read them. Moreover, they plainly provide the best evidence of the kind of judge she will be.

I cannot imagine why more journalists have not done the kind of analysis that Tom Goldstein has -- the ratio of reporting on what someone thinks s/he can discern in one line of Sotomayor's speech to reporting on actual cases is just about the reverse of what it ought to be. That makes me all the more grateful to SCOTUSBlog for giving us the kind of analysis we need, but get far too rarely.

One other interesting point: Sotomayor's panel has been criticized for not explaining their reasoning in the Ricci case. Whether this is plausibly construed as an attempt to duck the issues depends in part on how common it is for a panel on the Second Circuit to affirm a district court opinion without explaining why. Goldstein therefore checked this point as he was going through the race-related cases:

"In the roughly 55 cases in which the panel affirmed district court decisions rejecting a claim of employment discrimination or retaliation, the panel published its opinion or order only 5 times."

Good to know.

Hilzoy 1:05 AM Permalink | Trackbacks | Comments (21)

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Comments

If any opinion of Sotomayor's should be worrisome, it's Jocks vs. Taverier.

Posted by: Peter on May 30, 2009 at 1:13 AM | PERMALINK

Why do reporters not do this sort of analysis? Because it would involve work. Reporters don't do that. It would also require - oh, I don't know - high school level math? One stat class in categorical data analysis? (That would be overkill, stick with HS math).

Posted by: JohnN on May 30, 2009 at 1:31 AM | PERMALINK

I cannot imagine why more journalists have not done the kind of analysis that Tom Goldstein has

I can. To do what Goldstein has done means they'd have to WORK! Picture how Maynard G. Krebs reacted on Dobie Gillis every time someone said the word "work."

It's easier to scream "racist!" "affirmative action!" "empathy!" "identity politics!" "dim bulb!" than to do any actual reporting.

Posted by: Screamin' Demon on May 30, 2009 at 1:36 AM | PERMALINK

If any opinion of Sotomayor's should be worrisome, it's Jocks vs. Taverier.

If there are any lurkers who live in Wisconsin or Vermont, it's probably worthwhile to send that link to Sen. Feingold or Sen. Sanders and suggest they ask that question -- I'd be curious to see what Judge Sotomayor's answer was.

Posted by: Mnemosyne on May 30, 2009 at 2:10 AM | PERMALINK

I don't agree that the reason that journalists do not do the kind of thing hilzoy does here is because they hate work. The thing that always strikes me actually is how hard "journalists" work just to be able to regurgitate the conventional wisdom in a sufficiently sexy way to grab ratings. All that sourcing, and interviewing and shaping the narrative and roundtable discussion where everybody agrees to the topic boundaries, I would imagine to be quite exhausting.

The problem, in my opinion, is not their work ethic but that they work in an industry whose imperatives are much more about entertaining than informing. Its somewhat difficult for me to imagine, say Chris Matthews, spending a segment soberly going over these numbers and limning their significance.

Posted by: brent on May 30, 2009 at 3:01 AM | PERMALINK

Agreed with Peter.

If Sotomayor has a bias, it's against the little guy/gal and in favor of authority (cops/corps).

I'm also troubled by her apparent belief that religious institutions have an unbridled right to ignore anti-discrimination laws, as shown by her support for the "ministerial exception" in her dissent in Hankins v. Lyght.

Posted by: Disputo on May 30, 2009 at 3:32 AM | PERMALINK

"I cannot imagine why more journalists have not done the kind of analysis that Tom Goldstein has"

The most generous explanation is that reporters are human, and just like in any other profession (doctors, teachers, pilots, ad infinitum) there are only a very precious few who are actually very good at their job, a few more who are completely abominable, and everyone else who is just mediocre somewhere in between. And the great ones have bad days.

A more cynical explanation is that a majority of reporters simply don't care about the truth or the facts in a matter; they're interested only in telling an attention-getting story, and if fiction makes for a more salacious tale, they have no qualms about telling it. Reporters love conflict and drama - good news is dull, but car crashes and explosions get headlines. Cable news is built on selling melodrama, not information.

Network "news organizations" are competitive profit driven operations; the "news business" is exactly like "show business": the operative emphasis is on "business." Show biz execs notoriously don't care about the art or creativity in a movie or play, because the only thing that matters is whether it does good business. Same for "news" execs. They don't care about genuine informative news and edifying insight. All they want to do is sell eyeballs to advertisers. And their reporters - who generally have never really thought about political philosophy, and do not care to truly understand the implications of liberal or conservative agendas, merely want to curry executive favor and earn an ever-increasing paycheck. It has become abundantly self-evident that many political reporters plainly hate politics. Just like anyone else who does a job they dislike, they do it for the money (and maybe a little fame). They simply don't care about the implications of political action; their job as they see it is merely to "report" what he said/she said and collect a paycheck.

Hannah Arendt's phrase "the banality of evil" was coined to describe ordinary people who accepted the terms and conditions of their circumstances rather than question authority, and therefore participated with the view that their actions were normal. It's a characterization which pretty much sums up contemporary network "news" reporting.

But it has - with very few exceptions - ever been thus. Ed Murrow ultimately lost his job because Bill Paley didn't like that discomforting public confrontation Murrow had with Joe McCarthy.

William Randolph Hearst and Joseph Pulitzer were infamous for fabricating stories to sell their papers. There's no significant difference between CNN and Hearst's New York Journal or Pulitzer's World. And Pulitzer has a big time award named after him.

That's why "more journalists have not done the kind of analysis that Tom Goldstein has."

Posted by: bz on May 30, 2009 at 3:50 AM | PERMALINK

Tom Goldstein: Too many words!!! Cannot be reduced to convenient soundbite. Takes too long to read and even longer to comprehend, if at all.

Instead: Sotomayor is a racist!

sheesh

How ridiculous that these idiots (Rush, Beck, Malkin, etc.) have such a large platform to air their garbage.

Posted by: Me on May 30, 2009 at 4:01 AM | PERMALINK

For many years now, American politics has been soiled by a dynamic between extremist talking heads and television media looking for simple controversy to grab ratings. That dynamic is now hurting not just Republicans but the civility of the nation and respect for its courts. But the other dynamic affects the surviing print media. Reporters think that their job is to gather "balanced" quotes rather than to do direct analysis of factual materials. They are hurt by the norms of their profession -- by their sense that "work" consists of working the phone lines rather than looking at records, etc. This is also how they use scholars: they call them and talk for a long time to get ideas and facts, but then have to sum it up in one attributed quote.

This is a serious problem for the traditional news media -- and an unacknowledged part of the reason why they will not flourish in the new age.

Theda Skocpol

Posted by: Theda Skocpol on May 30, 2009 at 4:18 AM | PERMALINK

You 'honestly don't know'? Perhaps you are in a different base.

Posted by: Michael7843853 on May 30, 2009 at 4:27 AM | PERMALINK

Sotomayor's panel has been criticized for not explaining their reasoning in the Ricci case. Whether this is plausibly construed as an attempt to duck the issues depends in part on how common it is for a panel on the Second Circuit to affirm a district court opinion without explaining why.

What are you talking about? The Court quite clearly explained why it was affirming the district court opinion:

"We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D. Conn., Sept. 28, 2006)."

How much clearer could the reasoning behind the decision be? If you want to know why the Court ruled the way it did, all you have to do is look at the district court opinion, which the Court describes as "thorough, thoughtful, and well-reasoned."

I can't believe this case has loomed so large in the discussion of Sotomayor's jurisprudence. It's a per curiam ("by the court") decision, which means that all three members of the panel take the credit, but there's no indication as to which one of them actually wrote it. All we know for sure is that Sotomayor agrees with the opinion below and that she didn't feel any need to add her own spin to it.

How anyone thinks that he or she can discern anything important about the woman's judicial philosophy from a bare-bones per curiam decision that there's no evidence she wrote is a mystery to me.

Posted by: Basharov on May 30, 2009 at 5:28 AM | PERMALINK

I honestly don't know why so many people focus so much attention on their somewhat overwrought interpretations of one line in a speech

It's because that's all they hear on right-wing radio.

Posted by: Steve J. on May 30, 2009 at 6:27 AM | PERMALINK

"Her decisions are not classified documents. They are public, and anyone can read them."

Yes, but all that reading of legal jargon does NOT make a "thrill go up my leg."

Much more ENTERTAINING is a large number of people screaming at each other. Or, in the case of Matthews vs Burris and O'reilley vs anyone, a good old fashioned browbeating.

Always remember TeeVee is a Business, and it's raison d'etre is Profit. . .

Posted by: DAY on May 30, 2009 at 6:40 AM | PERMALINK

"I honestly don't know why so many people focus so much attention on their somewhat overwrought interpretations of one line in a speech and so little attention on ascertaining what kind of judge Sonia Sotomayor has been."

Because it's easier.

Posted by: hells littlest angel on May 30, 2009 at 7:12 AM | PERMALINK

Agree with most comments about laziness, profit, etc.

But no one has added deliberate bias. The SCLM has a deliberate bias against progressives or liberals.

Posted by: john wycliffe on May 30, 2009 at 7:20 AM | PERMALINK

on a tangental note: How come it's always foreign looking kids with funny "unamerican" names that win the spelling bee?

I bet Fred Barnes has a theory. . .

Posted by: DAY on May 30, 2009 at 7:52 AM | PERMALINK

The zanies of the far right of the RepuGs are not being pragmatic, as usual. The goal of the RepuGs media operations has always been to obfuscate and misdirect. However, by going overboard on the sexist, racist canards, they are muddying any legitimate discussion of the record of the Judge. By the time the hearings begin, their collectively shrill comments will have built up huge support for the lady.

Ah, if only we could have had another Rose Bird. Great lady and jurist. If she and others on that long ago California court had not overstepped into the dram shop laws and made politicos cringe over the extension of liability into social host situations, the movement to remove her would not have commenced. Bring back Liberal Justices.

Posted by: berttheclock on May 30, 2009 at 8:51 AM | PERMALINK

the villagers rely entirely on pseudo-facts. they can't be bothered to do actual research. reality interferes with their narrative.

pseudo-facts are so much better. they allow you to say anything you want without the worrisome bother of making the distinction between the truth and a lie.

pseudo-facts means never having to admit you were wrong!

Posted by: karen marie on May 30, 2009 at 9:25 AM | PERMALINK

"I cannot imagine why more journalists have not done the kind of analysis that Tom Goldstein has."

There's no question that the broadcast "news" world has increasingly valued shallow entertainment and conflict at the expense of hard, fact-based reporting, so it's no surprise that the "journalists" on TV and radio are essentially cogs in the entertainment machine. I don't expect the big-haired morons on Fox and CNN to do anything remotely factual; that's not their job. If they do, it's an anomaly.

I don't think that the entertainment-as-explanation model applies for the print side, since it's never been seen as "entertainment" per se; print "journalists" habitually pride themselves as being the real thing compared to their brethren in front of the cameras. For this reason the failings of the print "journalists" are especially inexcusable, and it absolutely comes down to how hard they work. Hardly a day went by in the 2008 campaign without some amazingly ill-informed writing being published in the local newspaper or in TIME or the NYT, while at the same time a wide variety of blogs maintained by poorly-paid (if paid at all) "amateur" journalists consistently dug out easily-obtainable factual information that made a mockery of what was being written in the established organs. It's not as though earnest print journalists all over the country are digging up the information themselves only to be actively forbidden to publish what they've uncovered; we'd hear about it from them if that was the case. With a very few notable exceptions, the vast majority of print journalists in this country appear to be incurious, indifferently educated, and above all, lazy. They're more interested in what's for lunch at the local watering hole than what the real facts are. The idea of staying up late and working weekends doing the same thing that the people who work at WM or TPM or C&L or FDL or TP have been doing for years simply doesn't occur to them. If it did, they'd be doing it already.

Teachers, professors, and librarians are thick on both sides of my family, and there's a hoary old bromide that has always been a source of amused irritation to them: "Those who can, do; those who can't, teach." Today, I'd add: "Those who can't teach become journalists."

Posted by: bluestatedon on May 30, 2009 at 9:55 AM | PERMALINK

Hilzoy, another good post. Thank you

Basharov on May 30, 2009 at 5:28 AM: Exactly Right.
Furthermore, all 7 judges (district and appellate) rejected the complaint.

Posted by: MatthewRMarler on May 30, 2009 at 12:44 PM | PERMALINK

Peter, thank you for Jocks vs. Tavernier

Why did Sotomayor see the case the way she did? Maybe because she is a former prosecutor: She went straight from Yale Law School to the Manhattan district attorney's office in 1979 and tried dozens of criminal cases there over five years. Or maybe Sotomayor has other reasons; it's hard to know. And in the end, the other two judges involved agreed she was right on the law. But what's striking, of course, is that she persuaded them to undo a verdict in a case that a jury saw as rife with police abuse of power. "You read this unanimous opinion, and it would seem to be the Republican judge who is driving this decision that she just signed on to. When in fact it was exactly the opposite," one observer said.

She evidently decided based on her view of the law, without a hint of "empathy". And this Latina persuaded two white guys to side with her, which I think is more than you can say for Souter, who is more of an echo to Ginsburg than Thomas is to Scalia.

The more I read of Judge Sotomayor, the more I think she'll be a strong contributor to the Court.

Posted by: MatthewRMarler on May 30, 2009 at 1:01 PM | PERMALINK




 

 

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