Judge Sotomayor and race — should her decisions wash away concerns raised by her “wise Latina” speech?

My law partner, Tom Goldstein of SCOTUSblog, has written two posts about Judge Sotomayor’s record in the race discrimination cases that she has heard as a Second Circuit judge. He concludes: “it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.”

Before I address that conclusion, let me consider some of the other points Tom makes. He notes that the MSM seems pre-occupied with Sotomayor’s life story as bearing on how she will decide cases. But President Obama was the first to flog her life story, and Sotomayor is on record that her life experiences (to the extent she is a “wise Latina”) would, she hopes, influence her judicial decisionmaking.

Tom also sees nothing “nefarious” in the fact that the panel that affirmed the district court’s decision in Ricci (the New Haven firefighters case) did so without publishing a substantial opinion. He bases this conclusion on the fact that the Second Circuit commonly rejects appeals from a finding of no discrimination or retaliation by unpublished order.

But my experience in employment law cases is that few appeals from findings of no employment discrimination raise issues of any interest, much less issues so important as to be good candidates for Supreme Court review. But Ricci did raise such issues, and one of the judge who criticized the way Sotomayor and the rest of the panel handled that appeal was Judge Cabranes, appointed by Bill Clinton and described by Sotomayor as a mentor.

A more useful analysis than the one Tom conducted would consider the number of cases that have made it to the Supreme Court in which the appeals court panel failed to publish a substantial opinion.

As to the question of whether Sotomayor lets race influence her decisions, I don’t see how that suggestion can be considered absurd when it was Sotomayor who said that a wise Latina would likely be influenced in this way.

Of course, a notion need not be absurd to be mistaken, and we should certainly be open to the argument that, whatever Sotomayor said some years ago in a speech, her decisions demonstrate neutrality, or at least nothing more than ordinary liberal tendencies, when it comes to race. But I share Ed Whelan’s skepticism that the sort of statistical review Tom has performed can speak persuasively to this question. And, considering the Ricci case and Sotomayor’s dissent from the denial of rehearing en banc in Brown v. City of Oneonta, 235 F.3d 769 (2d Cir. 2000), I would say that her track record is less reassuring than Tom supposes.

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