Republican fantasy vs. reality on Sotomayor

If all you knew about 2nd Circuit U.S. Appeals Court Judge Sonia Sotomayor came from conservative commentators, you would think Barack Obama had nominated a far-left reverse racist for the Supreme Court. A typically unhinged assessment by Iowa’s own Ted Sporer, chairman of the Polk County Republican Party, is titled “The Supreme Court pick: Justice denied, racism and sexism exalted.” Like most conservatives who are freaking out, Sporer is reacting to one quotation from a speech Sotomayor gave in 2001:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Conservative commentator Rod Dreher read the whole speech and concluded on Wednesday, “seeing her controversial comment in its larger context makes it look a lot less provocative and troubling.” However, the right-wing noise machine continues to sound the alarm about Sotomayor’s alleged radical, racist agenda.

You won’t be surprised to learn that people who have examined her judicial record (as opposed to one sentence from one speech) have reached substantially different conclusions. Some reality-based links are after the jump.

Tom Goldstein of the SCOTUS blog analyzed 96 race-related cases Sotomayor has decided on the U.S. 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.  

Goldstein’s whole post is worth reading, so click here to see why “it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.”

OK, so maybe she’s not a racist, but she probably promotes what Ted Sporer calls the “Labor/Socialist/Democrat social agenda” in other ways, right?

Wrong. Business Week declared Sotomayor to be a “moderate” and “centrist” on business issues. Excerpt:

“Judge Sotomayor has a track record of moderation on issues of importance to the business community,” said Evan M. Tager, an appeals specialist at Mayer Brown in Washington, D.C.

E.J. Dionne of the Washington Post asserted:

Republicans would be foolish to fight the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court because she is the most conservative choice that President Obama could have made.

And even though they should support her confirmation, liberals would be foolish to embrace Sotomayor as one of their own because her record is clearly that of a moderate. It is highly unlikely that she will push the court to the left. Indeed, on many issues of concern to business, she is likely to make the Chamber of Commerce perfectly happy.

Kate Sheppard wrote an interesting piece about Sotomayor’s “small but solid record” on environmental rulings. Richard Frank offered a somewhat different view at the environmental law and policy blog Legal Planet:

Sotomayor is not a predictable vote for environmentalists, industry, states or the federal government in environmental cases. Instead, she seems to weigh each case on its own merits, while displaying considerable skill in grasping the often arcane science and administrative history that form the basis of much modern environmental litigation.

In short, Sotomayor appears to be a deliberate, thoughtful jurist who, in the words of Chief Justice Roberts, serves as a neutral umpire in environmental cases, calling judicial “balls and strikes” dispassionately and objectively.

Not the ideologue conservative commentators portray and for which at least some segments of the environmental community might yearn.

Sotomayor’s record reveals little about her position on abortion rights or the Roe v. Wade precedent. As a result, the White House is trying to reassure nervous pro-choice advocates.

Glenn Greenwald revealed the hypocrisy of conservatives who claim judges should not have “empathy.” Click that link to read a priceless excerpt from Supreme Court Justice Sam Alito’s confirmation hearings. Alito admitted that his family’s experiences with immigration and discrimination have shaped his judicial philosophy.

A criminal defense attorney who has argued cases before her court believes that Sotomayor “is not going to be a skeptic of governmental power in the context of criminal defense cases.”

Several liberals have expressed concern about Sotomayor’s ruling in the Doninger case, which related to the First Amendment. For more on that case, see this post by Aldon Hynes or this post by Paul Levinson.

The bottom line is that no serious reading of Sotomayor’s judicial record supports the conservative paranoia about her nomination. Then again, if right-wingers want to further discredit themselves by attacking a judge favored by many Republicans, that’s fine by me.

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  • Sotomayor

    Sotomayor is absolutely right. And the part of that quote that Sporer (typically unhinged is a good way to describe him) and the other republicans keep looking past are the last five words: “who hasn’t lived that life.” She’s speaking about experiences, not race. Move on.

    The 2005 statement about appeals courts making policy was a foot-in-mouth moment. But that’s all it was, IMO.

    I read Levinson’s post on the Doninger case and I somewhat agree with him–to me, it seems like a bad decision. But the 1st Amend. as it relates to schools is a minefield of conflicting rulings, thoughts and messages. I’m not sure that a bad decision in this very, very complex legal area shows an overall hostile attitude toward freedom of speech issues or paints her as some sort of reverse Souter.

    • I don't think she was wrong in 2005

      The process of judicial review does mean that courts can indirectly make policy, because they are setting precedents for other courts to follow.

      Media Matters has more on those comments in their full context.

      I also disagree with the Doninger ruling, but any judge who’s been involved in more than 3,000 cases is going to get it wrong once in a while. To me that’s not disqualifying.