Tuesday, June 2, 2009 5:20 PM
A leading conservative critic of Judge Sonia Sotomayor and two law professors have taken mild issue with Supreme Court litigator Tom Goldstein's claim on SCOTUSblog that his statistical analysis of 97 race-related decisions ruled on by Sotomayor showed no evidence "that Sotomayor allows race to infect her decisionmaking." Goldstein's analysis was highlighted on this blog yesterday.
Conservative Ed Whelan, of the Ethics and Public Policy Center, writes on National Review Online's "Bench Memos" blog that "Goldstein's review omits the important case of Brown v. City of Oneonta, 235 F.3d 769 (2d Cir. 2000), in which Judge Sotomayor joined an opinion dissenting from the denial of rehearing en banc that set forth what Chief Judge [John] Walker called 'novel equal protection theories that ... would severely impact police protection'" in cases involving black suspects. In another post, Whelan discusses the case and critiques the Sotomayor position at some length.
Jonathan Adler, of Case Western Reserve Law School, notes on The Volokh Conspiracy blog that "insofar as the [Goldstein] review excludes some cases, such as the en banc review of Hayden v. Pataki, a Voting Rights Act challenge to felon disenfranchisement in which Judge Sotomayor dissented (see here), it may present an incomplete picture."
And Goldstein's SCOTUSblog colleague David Stras, of the University of Minnesota, writes:
This is an extremely comprehensive study and I do think it is probative of her jurisprudence, but I disagree with Tom that it shows that it is 'absurd to say that Judge Sotomayor allows race to infect her decisionmaking.' The statistics that Tom describes are essentially descriptive, similar to the type of information you would get if you were to run the mean, median, range, standard deviation of a statistical sample.While I tell the Ph.D. students that I supervise on dissertation committees that descriptive statistics are extremely helpful, they can only accomplish so much.... What is more helpful is to actually read those opinions, as Tom suggests in another post. If the opinions that Tom read are correct on the law, then there really cannot be even a credible argument that Sotomayor is somehow biased in cases involving race.
Mark
Wednesday, June 3, 2009
I take this exercise to imply that any ruling in favor of or beneficial to a minority evidences judicial bias, as a minority complaintant is always wrong on the merits. Judicious, dispassionate evenhandedness means always favoring whites, or at least, ruling against the poor, brown and black. As a white man, let me say I accept this principle gladly.
Debrah
Thursday, June 4, 2009
"Judicious, dispassionate evenhandedness means always favoring whites, ruling against the poor, brown and black."
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No Mark, it suggests nothing close to such hyperbole.
What it does suggest, however, is that when judicious, dispassionate evenhandedness is not the order of the day, an insidious and erosive "un-evenhandedness" most assuredly takes place......such as the entire nation witnessed in the Duke Lacrosse Hoax.
Mark
Thursday, June 4, 2009
I don't know Debrah.
First, Goldstein trumpets the fact that Sotomayor has ruled against the plaintiff in race discrimination cases (excluding en banc) 80% of the time in order to assuage fears that Sotomayor practices "race-based law" (conversely, no one fears that she might be discriminatory towards private power, since ruling in its favor is, I guess, always and everywhere objectively correct).
Secondly, it would appear that just one en banc decision is enough to upset whatever satisfaction Mr. Taylor can take from the 80%. Apparently, a justice whose ratio is less than 8:2 in favor of business (even marginally so) is immediately suspect of bias in favor of the plaintiff. From that I must conclude that at most, only 20% of race-related complaints at any given time have merit. To rule in favor of the plaintiff in 2 cases plus 1 out of 10 suggests bias.
So, yes, it is hyperbolic to say "that any ruling in favor of or beneficial to a minority evidences judicial bias". The truth is, in the vast majority of cases, a ruling in favor of a minority is prima facie evidence of judicial bias.
Again, as a white male, let me say, "hopefully so!"