Tuesday, June 2, 2009

Sotomayor--Let's Put the Cards on the Table (Ideological Patterns in Her Opinions)

Her judicial record is politically liberal. (And the graphs below will show this quite vividly.)

It's certainly not conservative. But neither is it politically centrist or moderate. It is pretty unmistakeably liberal.

Spending countless hours reading Judge Sonia Sotomayor's judicial opinions, and then many more exploring the common threads and bottom lines in them, leads to that rather inescapable conclusion. Unless, that is, one is intent on joining that chorus of supporters who believe they must insist that Sotomayor has no clear political leaning. But that is patently ridiculous. She's a liberal. I'm fine with that. And that is what her judicial record shows.

This is not to say that her record is one of a radical leftist. Only a right-wing conservative could review her opinions and draw such a conclusion. But by the same token, only a rather left-wing liberal could draw the conclusion that she is no liberal, that she cannot readily be classified, that she is really middle-of-the-road.

Let's be honest and clear-eyed. Let's not get caught up in the campaign for Sotomayor. That of the Obama administration, the Democrats, liberal groups, the sympathetic press and commentators, and other supporters. (Let's not get caught up in the right-wing campaign against her either. But much of that has been so outrageous and so irresponsible that it's easier to dismiss.)

She IS a liberal. If she is confirmed by the Senate and takes her seat on the Supreme Court, she will be part of the Court's liberal wing. She will generally side with liberal Justices Stevens, Ginsburg, and Breyer.

She will NOT be joining Chief Justice Roberts and Justices Scalia, Thomas, and Alito as a member of the Court's conservative wing. And neither will she be a moderately conservative swing-vote like Justice Kennedy currently is--or like Justice O'Connor was for many years before her retirement.

Unless, of course, she undergoes a dramatic ideological transformation. Or her judicial record to date actually means exactly the opposite of what it shows.

OK, let's get real, and let's take a graphic look at that record.

Ideological Patterns in Sotomayor's Opinions
(click to enlarge)
Graph 1 shows Judge Sotomayor's record to be quite liberal. Overall, and in each of several sub-sets of cases.

The graph reflects the opinions that Sotomayor has written in divided decisions during her tenure as a federal appellate judge. That is, the majority and dissenting opinions she has written while a judge on the U.S. Court of Appeals for the 2d Circuit (which sits in Manhattan) in those cases in which there was some disagreement among the judges.

These are the revealing decisions. Much more so than the others where the judges join together in one decision. Those unanimous decisions--where all the judges agree, at least publicly-- tell us little. We never know for sure whether there actually were internal disagreements among the judges which ultimately were concealed in compromise. Or which never saw the light of day because a disagreeing judge chose not to write a dissent for any one of a host of possible reasons.

But in the non-unanimous cases, we know that the judges felt strongly enough that they couldn't reach a compromise or gloss over their differences. We know that at least one judge felt strongly enough to go public with a disagreement by authoring a dissenting opinion. And we know that the judge writing the opinion for the majority of the court had to respond and explain why she thought the dissenter was wrong.

So these divided cases tell us the most about the individual judges and their views. The dissenting and majority opinions of a particular judge, especially when viewed collectively, tell us a great deal about what she thinks is important, what she agrees and disagrees with.

So Graph 1, as well as the next graph in this post, reflects the opinions of Sotomayor in these very revealing cases. (Forget about the nonsense being circulated about Sotomayor joining in so many decisions with the other judges, conservative as well as liberal. Do you think that conservative Justice Scalia and liberal Justice Ginsburg are on the same political wavelength because they vote together in all the Supreme Court's unanimous decisions? Of course not. If you want to know about a judge, look at how she votes and writes in the more difficult, more controversial cases where the judges publicly disagree--i.e., the divided cases!)

Let's take another look at Sotomayor's record of opinions in the divided cases. This time, to make the ideological patterns even more vivid, let's add to Graph 1 the frequency with which she took conservative positions. This provides a pretty striking contrast.

Ideological Patterns in Sotomayor's Opinions
Liberal vs. Conservative
(click to enlarge)
Graph 2, like Graph 1, is based on Sotomayor's majority and dissenting opinions in divided cases. There were 33 in all. 29 of them had readily identifiable liberal versus conservative positions. This graph, like the previous one, reflects Sotomayor's positions in the opinions she wrote in those 29 cases. They represent a very wide range of issues.

In the 'law & order" category, Sotomayor's opinions dealt with jury selection, the sufficiency of evidence to prove guilt, enhanced sentencing for aggravating factors, warrantless searches and seizures, child pornography, sexual misconduct with minors, drug crimes, possession of stolen goods, the ramifications of criminal convictions on other proceedings, and many other issues. She either took a position that was at odds with a majority of her colleagues, or she wrote for the majority against a dissenter.

On those "law & order" issues, she took the more liberal position--i.e., the position more favorable to the rights of the accused--twice as frequently as she took the more conservative one. As Graph 2 shows, 67% to 33%.

The "discrimination" category of cases involved issues of sex, race, and age discrimination. In each of these, it was a member of the minority or vulnerable class claiming the discrimination--i.e., woman, African-American or Hispanic, or elderly. The claims arose in both criminal and civil cases. They involved jury selection, employment, and voting rights. Sotomayor took the liberal position--i.e., siding with the party claiming discrimination--almost every time. As the graph shows, 86% to 14% of the time.

The "privacy" category includes issues of strip searches, wiretapping, and police searches and seizures in the home. Sotomayor objected to the government intrusions on privacy 80% of the time.

The "litigation/business" category includes all those cases with an issue having a pro versus anti civil litigation component to it, or with positions that were sympathetic versus unsympathetic to business interests. Among those were class actions, securities fraud, bankruptcy fraud, employment discrimination, negligent product design, and business tax violation. Sotomayor took the more liberal position--i.e., supportive of civil litigation and unsympathetic to business--in almost all the cases. As the graph shows, 85% to 15% of the time.

Summing it all up. Sotomayor took the liberal position in her majority and dissenting opinions in 72% of the cases.

Now that's not 100% or 90%. But it's not 50%, or 45-55% either. So it is, in fact, pretty clear what Sotomayor's juris-political leanings are. Again, as my Dad would say, let's put the cards on the table.

As I previously wrote on New York Court Watcher, we will look at Judge Sonia Sotomayor's record from several different angles in several posts. (See Sotomayor--Let's Put the Cards on the Table (First, Some Prefatory Comments), May28, 2009.) Tomorrow's post will continue to look at the ideological breakdown of her judicial opinions. We'll look at her record in dissent--dissenting opinions are typically the most revealing of a judge's judicial writings. We'll also compare her ideological track record to that of her colleagues. Is she all that liberal when compared to them? Or even more so? (Yes, I hate those damned teasers too. But I want to wrap this one up for today, because I do want to make sure I finish the next post for tomorrow.)