Saturday, May 30, 2009

Sotomayor and discrimination

By Michael J.W. Stickings

SCOTUSblog's Tom Goldstein has conducted a study of all of Sonia Sotomayor's "race-related cases," 96 in total that were before her on the court of appeals. And what he concluded was that "Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1." In decisions involving race, she "disagreed with her colleagues" only four times.

Now, this doesn't tell us much. Each case should be examined individually, on the merits, because what really matters is not whether she rejected discrimination claims but whether she was right to reject them.

Still, what is clear is that there is simply no evidence, based on the record, that she is an "outlier" in terms of discrimination (again, she voted with her colleagues the vast majority of the time). Indeed, as Goldstein writes, "[g]iven that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking."

I'm not sure "infect" is the right word to use here. There may very well be times (and cases) when not racism but a sensitivity to race and racism (perhaps based on one's own experienes) should be included in one's decision-making. And it may well be that Sotomayor was wrong to side with her colleagues on some of these cases. Perhaps, either in general or with respect to specific cases, she and her colleagues were overly insensitive to claims of discrimination.

In other words, it is not proof of a sound legal mind, or of being right, that one generally rejects discrimination claims. Instead, it could be proof that the system, and the judges within it, are not adequately sensitive to discrimination.

Still, Goldstein's findings do effectively refute the (discriminatory) claims of Sotomayor's critics on the right -- and there are many of them -- that she is racist, and that she allows her own identity as an Hispanic woman to shape her legal opinions. Of there, there is simply no evidence at all, and, to the contrary, if there is actual evidence of anything, it is that she is very much like most other judges on the federal benches, for better and for worse.

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