Dispatches from the Creation Wars

Judge Sotomayor: Not a Radical

Conservative interest groups have predictably launched their familiar litany of codephrases on Judge Sotomayor. Within moments of the announcement of her nomination, all the old rhetoric immediately came out: she’s a “liberal judicial activist,” declared Wendy Long of the Judicial Confirmation Network, whose “personal political agenda is more important tha[n] the law as written.” But in fact, a look at her rulings on the 2nd Circuit Court of Appeals reveals nothing of the sort.

What a study of her rulings on the appeals court reveals is a judge who carefully attempts to follow precedent even if it conflicts with her own views or political alliances. For example, in Center for Reproductive Law and Policy v. Bush, a 2002 case challenging the “Mexico City Policy” that forbid the use of foreign aid funding by any organization that promoted abortion, Sotomayor upheld the constitutionality of that rule despite being pro-choice herself.

In Amnesty America v. Town of West Hartford, Judge Sotomayor overturned a lower court ruling that had gone against a group of anti-abortion protesters who had alleged violations of their civil rights, ruling that the protesters had to be allowed their day in court to challenge that they considered to be the use of excessive force by the police.

One might expect that as a member of a racial minority she might be less likely to extend constitutional protection to overtly racist speech, but in Pappas v. Giuliani Judge Sotomayor filed a dissenting opinion arguing for the strongest possible First Amendment protection for an employee of the New York Police Department who was fired for mailing out racist material in response to requests for contributions to charities.

In her dissent, Sotomayor acknowledged that the plaintiff’s mailings were “patently offensive, hateful, and insulting” but urged her colleagues not to “gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.” And while she recognized that the NYPD had a legitimate concern over the department’s ability to maintain adequate race relations with the community, the fact that the employee was not an officer or in the public eye and their speech had taken place in their private life rather than on the job, those concerns “are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.”

Judge Sotomayor has generally been viewed as sympathetic to discrimination claims by employees, but she has shown no penchant for ignoring the law in order to uphold such claims. In Norville v. Staten Island University Hospital, for example, she rejected a claim of racial discrimination by a nurse who was fired from her job because the plaintiff “did not produce evidence sufficient to support a reasonable inference that her termination was the result of race discrimination.”

In Williams v. R.H. Donnelly Co., Judge Sotomayor rejected a claim of racial discrimination, saying that the plaintiff had failed to show that she ws discriminated against when her employer refused to create a new position for her because the employer had never done so for any other employee.

The case that seems to be getting the most attention from opponents is Ricci v. DeStefano, a case involving claims of reverse discrimination because the city of New Haven, Connecticut, decided to set aside the results of a written test for firefighters because basing promotions on those results would have a disparate impact on minorities.

A group of firefighters filed suit claiming that this amounted to reverse discrimination. The district court ruled in favor of the city, finding that their intent was not to discriminate but to avoid potential lawsuits from the other side based on Title XII discrimination claims. Judge Sotomayor was part of a three-judge panel that upheld that district court ruling, but they did so in a per curiam ruling, without spelling out the reasons why.

They did, however, offer some reasons for upholding the district court in an opinion written when the full circuit considered an appeal for an en banc rehearing (reconsideration of a case by the full appeals court), an opinion joined by Judge Sotomayor. In essence, they argue that the legal standard requires that the plaintiffs show that the city acted with the intent to discriminate, but the evidence in the case indicates that the city acted in order to avoid potential lawsuits.

The case is now on appeal to the U.S. Supreme Court and a ruling will be issued before the confirmation hearings for Judge Sotomayor begin. It is quite possible that the Supreme Court will overturn that ruling and remand the case back down to the district court for a retrial, but if they do so it will likely be a 5-4 decision because it’s really a close call in terms of the legal issues.

There is fair criticism, some of it coming from Judge Cabranes, a fellow judge on the 2nd Circuit Appeals Court, of the panel adopting the district court’s analysis without spelling out the reasons why. It’s a case with an unusual set of facts and poorly defined precedents, which probably argues more strongly for a thorough and detailed opinion from the appeals court rather than a per curiam opinion that did not seek to resolve the serious constitutional questions in the case.

But even if the ruling in which Sotomayor joined is overturned, it will likely be overturned on narrow grounds involving highly technical readings of statutory law and existing precedent.

Overall, the record just doesn’t reflect a “radical” judge who rules however she feels like ruling. It reflects a judge who carefully follows precedent, as confusing as that can often be, and tailors her decisions to the facts of each case rather than having some overarching goal of righting societal wrongs no matter what the law says.

A commenter at Volokh made a comment that I think is pretty close to the truth:

As a conservative lawyer, I’m fine with this pick. As far as appellate judges go, Sotomayor is generally undistinguished. She’s a political pick designed to appeal to an interest group. Obama has 59, practically 60 seats in the Senate, and he could have named a strong, dynamic liberal who would have been a game-changer (even if only taking Souter’s seat). He didn’t.

Sotomayor was the safe choice: Hispanic, female, compelling life story, and few controversial decisions. She’s a reliably liberal vote who doesn’t move the ball in any significant way. There could have been much stronger picks (Kathleen Sullivan, Pam Karlan, even Diane Wood), but Obama, ever the politican, made a political decision.

I think that’s about right. Her personal story is great. Her rulings tend to reveal a solid, unspectacular thinker. Sullivan, Karlan or Wood all would have been riskier picks, but also more likely to have a real effect on the court. Bear in mind that every new personality added to the court changes the dynamics of the court in ways that can’t always be predicted. But I don’t see Sotomayor as someone who will change the dynamic in a major way. Diane Wood might have been a pick that could really shake things up because she’s so well respected on both sides of the aisle and because she has a history of rallying her colleagues around her brilliance. I don’t think Sotomayor has that kind of gravitas. But I think she’ll be a generally reliable liberal vote for Obama.