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Case Sampling and Sotomayor

Over at SCOTUSBlog, Tom Goldstein argues:

[I]n an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. . . . Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

(H/t Adler)

As Professor Adler notes -- and a fellow blogger at SCOTUSBlog explains -- such "a descriptive review of the cases can only show so much."

Indeed. Looking at summary statistics considering overall case disposition, I would argue, does little more than confuse the issue. Particularly at the Court of Appeals level, most cases are clearly dictated by precedent. It's true, of course, that any critic might be accused of unfairly cherry-picking controversial cases. But still, it doesn't say much at all to say that Sotomayor has only disagreed with her colleagues in 4 of 96 cases. As the president nominating her once noted:

[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult.

That statement was made in then-Senator Obama's formal statement opposing the appointment of Chief Justice Roberts.

I emphasize that I am not accusing Judge Sotomayor of "allow[ing] race to infect her decisionmaking." But even if the president and I may disagree in how those 5 percent of cases should be resolved, I clearly agree with him that those 5 percent of cases upon which Scalia and Ginsburg might disagree on a Circuit Court are not insignificant -- and I agree with the POTUS that an analysis focusing on those particularly close cases would not be "absurd."

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.