The concerns that I and others have raised about Judge Sonia Sotomayor's now famous "wise Latina woman" speech, and about her vote last year to uphold race-based discrimination in promotions among New Haven firefighters, raise this question:
Has Sotomayor exhibited a pattern of favoritism to minorities in race-related cases during her more than 10 years on the U.S. Court of Appeals for the 2nd Circuit?
The answer is no, according to Tom Goldstein of Akin Gump's Washington office, a leading Supreme Court litigator. He has published on SCOTUSBlog, in two installments, the results of his own study of the 97 race-related cases Sotomayor has helped decide on the appeals court.
After summarizing statistics indicating that Sotomayor is not especially prone to rule for plaintiffs in discrimination cases and rarely disagrees with her 2nd Circuit colleagues in such cases, Goldstein concludes:
"Given that record, it seems absurd to say that Sotomayor allows race to infect her decisionmaking."
Others may look at the same cases and draw different conclusions. And Goldstein's analysis does not altogether dispel my concerns that once on the Supreme Court, Sotomayor's sympathies for particular groups may skew her views of the facts and the law. See my past columns here, here and here.
For the best detailed dissection of Sotomayor's 2001 speech, by Steve Chapman, read his column in the Sunday Chicago Tribune.
But with respect to Sotomayor's overall record in race-related cases on the appeals court, Goldstein's analysis is reassuring. Her critics now have the burden of showing either that Goldstein's analysis is wrong or that the nominee's record on the appeals court is not a valid predicter of what she would do on the Supreme Court.
From National Journal's May 30 cover story:
The New York Yankees, the baseball team that Sonia Sotomayor says she adores, was among the first to use the squeeze play to great and showy effect nearly a century ago, occasionally even getting two runs with one well-executed maneuver. Senators shouldn't be surprised, then, that President Obama and his Supreme Court nominee know how to piece together victories.
As things stood at week's end, the president had the support of his own team to get Sotomayor touching home plate by the fall. Beginning next week during private meetings with senators, the 54-year-old Appeals Court judge will effectively begin the real "hearings" process, when Republican senators question her in one-on-one conversations that will shape their opinions well before the Judiciary Committee gavels open her confirmation hearings. They'll ask about empathy and her decisions during 11 years on the Appeals bench, and they'll look for any chinks serious enough to disqualify the first Hispanic, who is also only the fourth woman nominated to the Court....
Conservative activists outside the Senate lost no time assailing Sotomayor as a closet liberal well beyond the mainstream who would eagerly try to make law once confirmed. But Senate Republicans, most of them far from Washington during the Memorial Day recess, kept their instant assessments in check while studying Sotomayor's record and weighing whether a vote to oppose a Hispanic woman would haunt them politically. Some Republican advocacy groups and activists conceded that defeating Obama's choice would be tough.
"The administration wants to put a squeeze on senators and make it politically hard to oppose her," said Wendy Long, general counsel for the conservative Judicial Confirmation Network. "We want to make sure senators evaluate her without regard to demographic consideration, honestly and fairly on the merits."
"Good luck" was the refrain from Senate Democrats who are gearing up to help the White House secure the nomination of a woman who has been on liberals' short list of Supreme Court candidates for years. While they're at it, Democrats are trying to pit social conservatives against GOP moderates -- factions already arm-wrestling over their party's direction in the wake of two disastrous election cycles.
Subscribers to National Journal can read the rest of the story here.
Hispanic interest groups are headed to the Senate in support of Sonia Sotomayor's nomination, and not for the first time. In 1998, after Sotomayor's nomination to the appellate court level had languished in the Senate for more than a year, a coalition of legal and community groups began to complain that Hispanic judicial nominees were being held up for much longer than non-Hispanics.
Lauren Bell, a political science professor at Randolph-Macon College in Ashland, Va., who was a visiting fellow on the Senate Judiciary Committee at the time, said that empirically it was true that Hispanic nominations took longer to get through the Republican-controlled Senate. "The Republicans said it wasn't about them being Hispanic, it was about them being activists," Bell said.
Nonetheless, the Hispanic National Bar Association and other groups undertook a major lobbying effort. Ramona Romero, president of the Hispanic National Bar Association, was head of the organization's District of Columbia affiliate at the time. "A group of the Hispanic leaders who are interested in a fair, diverse and independent judiciary took notice of the fact that the Senate was not performing its duty to advise and consent in a fair and appropriate way, and we did take notice and we did act on it," she said.
Their personal appeals and visits to senators attracted the attention of New York Republican Alfonse D'Amato -- who was up for reelection that year. In an interview this week, D'Amato said he appealed to Senate leaders to bring Sotomayor and other Hispanic nominees to a vote. "I really did push for it because she had strong support from the legal community as well as the Hispanic community," D'Amato said.
Shortly after President Obama announced her as his choice for the Supreme Court, Judge Sonia Sotomayor broke new ground this morning when she became the first nominee to the nation's highest court to get flamed on Twitter.
At 9:18 am -- moments after her name emerged in media reports as the nominee, Rep. Patrick McHenry, R-N.C., became the first of many members of Congress to offer their 140-character 2 cents on the woman likely to ascend to the court later this summer. McHenry's take? "Sotomayor in 2005: 'court of appeals is where policy is made.' Did Obama's nominee fail 8th grade civics?"
The GOP has made a concerted effort to dominate Twitter and other social media outlets, so it's not surprising that the first Sotomayor-related congressional tweet came from a Republican. What's more interesting is the number of tweets in support of Obama's nominee that have poured forth from Democrats. As any avid Twitter follower can tell you, congressional Dems who use the online messaging service usually sit on the sidelines during policy debates, instead reserving their tweets for chatting with followers or broadcasting where they are at a given moment.
A good example of the GOP's dominance came earlier this year in the fight over the omnibus spending bill. Back then, Sen. John McCain, R-Ariz., used the messaging service to effectively mount an attack on what he called wasteful spending in the bill. The attack managed to break into the national media and, arguably, ended up affecting the Senate debate. Dem tweeters largely steered clear of the back-and-forth, ceding the online space to the bill's opponents.
With the coming Sotomayor fight, however, Dems don't seem as content to let the GOP run the table on Twitter. So far today, Missouri Sen. Claire McCaskill, Connecticut Sen. Chris Dodd and New Jersey Sen. Bob Menendez have tweeted their strong support for Obama's pick. Even newly-minted Democrat Sen. Arlen Specter of Pennsylvania joined in with his own strongly pro-Sotomayor message shortly after the nominee was announced.
Whether Sotomayor will find smooth sailing in the Senate is somebody else's guess. But one thing is certain. In the age of the Twittering politician, Sotomayor's got the support she needs among Dems to face off against the GOP tweetmachine.
With her announcement today as President Obama's choice to replace Justice David Souter, Sonia Sotomayor became the 159th nomination to the Supreme Court, a list that begins with the court's seven original justices and ends most recently with Samuel Alito. Of the previous 158 nominations, 122 were confirmed by the Senate.
Subscribers to CongressDaily can view the complete list here.
