Apples and Oranges: Commentators Are Making Too Much of the Bulk of Sotomayors Appellate Decisions and Too Little of The Handful of Cases That Are Indicative of Her Temperment
ByWe were only able to break away for a brief moment yesterday to watch coverage of the Sotomayer confirmation hearings, but in that brief time we noticed a pattern of commentary we wanted to address. Both commentators on the Right and the Left were talking about the seemingly high percentage of opinions in which Judge Sotomayor either concurred with “conservative” judges on the 2nd circuit or joined in opinions against civil rights or race discrimination plaintiffs. Liberals championed this as evidence of a moderate record on the bench and conservatives grudgingly agreed. We dissent.
We’ll let others decide whether the “conservatives” on the 2nd Circuit Court of Appeals used in calculating the figures being bandied about are really conservative. Our concern is that the discussion of 70% or 80% concurrance rates or 70% or 80% rate of decisions to the detriment of racial discrimination plaintiffs doesn’t make clear what lower appellate court judges do most of the time and how that is different from what a justice of the Supreme Court does.
Here’s the context that should be provided to make sense of a statement like 75% of the time Justice Sotomayor ruled against racial discrimination plaintiffs. First, a trial court judge and/or jury hears evidence regarding a racial discrimination claim. Weighing the evidence the judge or the jury make a decision about the merits of the plaintiffs claim. That judge, the trial court judge, makes a decision about whether discrimination really occurred. The unsatisfied party or parties appeals the trial court’s decision on specific grounds — the vast majority of the time those grounds involve some kind of error made by the trial court judge — maybe he or she read a jury instruction that slightly mistated the law or admitted evidence that should have been excluded because it was prejudicial. The appellate court does not rexamine the entire record and throw in its opinion about whether discrimination took place. Judge Sotomayor’s job, then, is typically to answer a discreet question about whether the lower court judge made a mistake of law, but not to weigh the evidence and decide whether discrimination really occurred. The record before the appellate courts does not include the full spectrum of information necessary for concluding whether a witness seems credible or a fact has really been established. So, when Judge Sotomayor of the 2nd circuit court of appeals reviewd a racial discrimination case or most other kinds of cases, the question before her was actually something like this: Did the trial court err in admitting testimony of a spouse against the defendent? In other words, the facts of the case are about racial discrimination, but her review and ultimate decision really isn’t.
Just as importantly, the vast majority of cases before Sotomayor didn’t involve opportunities to really make new law on controversial political grounds because the matters aren’t instances of first impression or areas where there is a real gap in the law. We think that litigants would have a lot less confidence in the courts if the outcome of their litigation came down to whether they drew Justice A or Justice B in a lottery. Certainly on some issues — particuarly issues with gaps in the law — and in some circuits more than others, the appellate judge assigned to a case can greatly affect the outcome, but only some and not most appellate cases at Judge Sotomayor’s level are an opportunity to make new law in an unsettled area of political controversy or legislate from the bench. So, it shouldn’t be surprising that she agrees with most other judges on these more mundane matters.
However, a justice of the Supreme Court hears about 150 cases a session, almost all of which are landmark cases in which the court is asked to weigh in on largely controversial issues of constitutional interpretation or fill gaps in the law or reconcile positions held by conflicting lower circuit courts. In this different context, her track record of agreeing with other judges while serving as a lower court appellate judge doesn’t matter all that much. The cases worth looking at *are* the more rare outlier cases that illustrate how she would rule when given the real opportunity to legislate from the bench on a matter of concern or controversy.
For this reason, we think that conservative commentators who grudgingly “accept the fact” about Sotomayor having a record of moderation based on the bulk of her rulings are doing a disservice. The better response is that the few outlier cases like Ricci are what must be examined in order to get an idea of how she’d perform on the Supreme Court, not a bunch of more mundane cases without constitutional or constroversial issues before the 2nd Circuit.
