Based on an anlysis of all 46 cases in which Judge Sonia Sotomayor participated where there was a “split decision,” the Washington Post concludes that the nominee “falls within the mainstream” of court of appeals judges appointed by a Democratic president. But as I read the Post’s story, it would be more accurate to say that Sotomayor is more liberal than the average court of appeals judge appointed by a Democratic president, and possibly singificantly more liberal.
According to the Post’s analysis, Sotomayor took the liberal position in 59 percent of her “split” cases. The average appeals court judge appointed by a Democratic president voted “liberal” in 52 percent of such cases. The average court of appeals judge appointed by a Republican president did so 39 percent of the time. (The Post determined whether a vote is liberal based on a fairly crude system devised by a professor political science — for example, a vote in favor of a posltion advanced by a criminal defendant is considered liberal).
Sotomayor, then, is to the “left” of the average judge appointed by a Democrat. It’s impossible to tell from the Post’s report whether the difference is significant. But if the “distance” between the average judge appointed by a Dem and the average judge appointed by a Republican is 13 percentage points, then it does not seem inconsequential for Sotomayor to be 7 percentage points to the left of the Dem average. It would be helpful to know how many judges appointed by Dems are to the left of Sotomayor, and by how much. However, the Post doesn’t tell us.
The Post’s main finding based on its review of Sotomayor’s opinions is that she discusses the facts of her cases much more extensively than most appellate court judges. Fact-finding is the role of the trial judge and/or jury, of course, and appeals court judges are supposed to give considerable deference to the facts found “below.” That doesn’t mean that it’s improper for appellate opinions to discuss the facts in detail, and an appellate judge might do so for a number of legitimate reasons. (For example, Justice Alito discussed the facts of Ricci, the New Haven firefighters case, extensively in his excellent concurring in order to highlight the unjust racial politics that victimized the white plaintiffs). A problem arises only if the judge ultimately fails to grant the proper degree of deference to the findings of the lower court.
I can’t tell from the Post’s article whether, or to what extent, Sotomayor commits this error. The Post suggests that she may have done so in a 2004 case about strip searches and one of her colleagues (a liberal) accused her of doing so in another 2004 case involving a criminal conviction for child pornography. But without studying the cases, it’s not possible to say whether Sotomayor actually overstepped her bounds.
This much is clear, however: Sotomayor’s one-paragraph opinion upholding the district court’s opinion in Ricci represents a conspicuous departure from her normal practice of writing detailed opinions which discuss the facts at length. Republican Senators will probably want Sotomayor to reconcile her approach to that case with her normal approach.