Wednesday, June 3, 2009

Sotomayor--Let's Put the Cards on the Table (Versus Her Colleagues)

Sonia Sotomayor's judicial record is not only much more politically liberal than conservative. It is also much more liberal than that of her colleagues. (And as the 3 following graphs show, it's not that close.)

This is not being stated as a complaint or criticism. (Disclosure: In the unlikely event it is not readily apparent from what has previously been written on New York Court Watcher, I strongly favor a judge who would be more politically liberal than the current Supreme Court is, and to help change the Court's quarter-century old rightward direction.) No, this is stated simply because it is what Sotomayor's record shows. And because there has been considerable public dissembling and obfuscation about it.

We should know what we are getting in a Supreme Court nominee. We should at least know what her judicial track record is and what it tells us. Even if she should surprise us later and turn into something else once she's confirmed. We should at least know what she has been. That's the best indication we currently have of what she will be. And as we've already seen, Sotomayor's judicial track record is pretty clear. (See yesterday's post: Sotomayor--Let's Put the Cards on the Table (Ideological Patterns in Her Opinions), June 2, 2009.) At least it's clear as to where she falls on a liberal-to-conservative ideological spectrum.

Let's take another look at her record and, specifically again, at its ideological profile. But this time let's take a somewhat different look. Let's look at her dissenting opinions alone. The opinions in which she disagreed with her colleagues. Why? Because these are the most revealing of all.

Yes, all the opinions and votes in the divided cases are revealing. These difficult, controversial, especially divisive cases, where the members of a court simply cannot come together as one, tell us a great deal. Each judge is required to choose a side, and to do so publicly with a vote and maybe even an opinion.

But the dissents in these divided cases are the most revealing of all. They represent the issues which a judge believes to be so important, so much a matter of principle, so incapable of compromise, that the judge is willing to break with her colleagues, and to do so openly. To do so in a written opinion. An opinion explaining why she believes her colleagues are wrong, why she is right, and why the disagreement with her colleagues is too big or too critical to be disregarded or glossed over for the sake of public unanimity and collegiality.

These are the opinions about issues which a judge believes are so important that she is willing to break publicly with her colleagues and to expend the additional time and energy--beyond the shared responsibilities of writing unanimous and majority opinions--to write a dissent. Not a writing for the institution. But a personal one for the judge herself.

Here then is a graphic account of Judge Sotomayor's dissenting opinions--the public disagreements with her colleagues.

Ideological Patterns in Sotomayor's Dissenting Opinions
(click to enlarge)
The patterns are even clearer in her dissents than in her combined opinions--majority as well as dissents. Remember, these are the opinions where Judge Sotomayor was writing for herself. Where she choose to take the additional time and energy to express her disagreement with the positions taken by the other judges deciding the case with her. Disagreement with the judges who prevailed but with whom she chose not to go along.

And look how these opinions break down. In cases involving "law & order" issues, she wrote dissenting opinions adopting the liberal position--i.e., more favorable to the rights of the accused--89% of the time.

In the "discrimination" cases, those involving claims of discriminatory treatment of minority or other vulnerable classes, her dissents were 80% liberal--i.e., supportive of the claimants.

In the "privacy" cases, involving bodily, home and conversational privacy, her dissents were 100% liberal--i.e., supportive of the claims that privacy had been violated.

In the "litigation/business" cases, her dissents were 78% liberal--i.e., supportive of the civil litigation or otherwise opposed to or tough on business interests.

Overall, she took the politically liberal position in 82% of her dissents. In short, where she disagreed with the majority of her colleagues--where she openly disagreed with the decision reached by her court--she took the more politically liberal position 82% of the time. Stated otherwise, she took a more politically conservative position than her colleagues in only only 18% of the cases.

Here again is that first graph. But this time it includes the contrast between how frequently Sotomayor disagreed with her colleagues and took a more liberal position, with how frequently she did so and took a more conservative one.

Ideological Patterns in Sotomayor's Dissenting Opinions
Liberal vs. Conservative

(click to enlarge)
The contrast is quite striking. And remember, these are her personal opinions. Not institutional. Not collegial. Not compromise. Not glossing over differences. Sotomayor's own positions on the issues important enough to her to justify these public disagreements with her colleagues.

This graph, like graph 1, reflects Sotomayor's positions in the dissenting opinions she authored as a federal appeals judge. There are 20 of them in all; 17 of them break down along politically liberal versus politically conservative lines. Those are the ones visualized in the 2 graphs.

Yes, I know. "But she participated in so many more cases. This is only a fraction." Yes, but it's the fraction that tells us about the judge and her colleagues. Its the fraction that allows us an insight into the "inner sanctum" of judicial deliberations. The fraction that tells us what the judge cares about the most. The fraction that tells us how a judge sides on the tough questions, the difficult ones, the ones that the judges--like the rest of us--disagree about the most. And about which they, like us, feel the most fervently.

And that's why judicial scholars focus on such cases and such opinions. 'Nuff said about that.

Now let's consider one more aspect of Sotomayor's judicial record. How does her record contrast ideologically with that of her colleagues? Let's take a look once again, as we did in yesterday's post, at all Sotomayor's opinions in divided cases. All her majority opinions as well as her dissents. Hence, all the opinions in those tough, controversial, divisive cases (Yes, you know the descriptors by now.) in which the judges just could not disregard their differences and join together as one.

Specifically, let's look at Sotomayor's record in all these cases as contrasted with the record of her colleagues. That is, the ideological patterns in Sotomayor's majority + dissenting opinions as opposed to that of the majority of her colleagues--i.e., the court's decision--in all those cases.

Here it is.

Ideological Patterns in Sotomayor's Opinions
Sotomayor vs, Her Colleagues

(click to enlarge)
Okay, it's not even close. Sotomayor took the more politically liberal position more than twice as frequently as her colleagues.

To be clear: in those divided--i.e., non-unanimous--cases in which Judge Sotomayor wrote an opinion, either the majority for the court or her own dissent, she adopted and argued for the more politically liberal position, on the issue in question in those cases, more than 2 times as often as did the majority of her colleagues in those same cases.

And remember, this is the federal appeals court for the 2d Circuit. It sits in New York, New York. This is not the 4th Circuit sitting in Richmond, Virginia. Or the 11th sitting in Georgia. Or the 10th sitting in Utah. This Manhattan court is not one of the more conservative courts in the country. And Sotomayor's record is unmistakeably liberal even by the standards of that court.

(For a list of the kinds of issues dealt with by Sotomayor and her colleagues in the divided cases, see yesterday's post on New York Court Watcher. Again, that's Sotomayor--Let's Put the Cards on the Table (Ideological Patterns in Her Opinions), June 2, 2009.)

In the next post, we'll identify some salient common threads in Judge Sotomayor's opinions. Substantive, not stylistic. (Perhaps we'll discuss a little about the latter in a subsequent post.)