As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."

Monday, June 01, 2009

Not Your Father's Supreme Court

Without the Internet, this level of detail almost certainly wouldn't exist, but we can now paint a pretty full picture of Judge Sonia Sotomayor's decisions on the 2nd Circuit Court, a body of evidence that can be used to form an opinion about what kind of Supreme Court Justice she will make. And it's a mixed bag. There are some hopeful signs, like her ruling in Hayden v. Pataki, where she argued that felon disenfranchisement laws do fall under the purview of the Voting Rights Act, suggesting an inclusive treatment of the franchise for all citizens. She based this on the plain reading of the statutory text of the Voting Rights Act. She dissented in the case of Pappas v. Giuliani, arguing that an anti-Semitic rant sent by the plaintiff was not enough to have him fired by the NYPD, and that he deserved a jury trial to determine if his First Amendment rights were violated. This is a powerful endorsement of the First Amendment, even in a case where the speech is distasteful. Her dissent in a strip-search case shows her defense of civil rights and the unreasonable search and seizure clause of the Fourth Amendment.

At the same time, in Jocks v. Tavernier, she strongly upheld, and convinced her Republican colleagues, police power and broad grounds for arrest in a case where a man who needed help with his truck in an emergency ended up being arrested and losing his job. And her general temperament is of a judge who hews extremely close to the law, never mind the bleatings of the right. Far from being a conquistador or leading with her race, she actually favored the law over blanket claims of discrimination the majority of the time.

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1 [...]

In sum, in 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. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

I truly value this variety of treatment of the Sotomayor record, all of which came from blogs and not the traditional media. And I think you can get a full picture of Sotomayor from this treatment. What come sup for me is the overwhelming feeling that this is a highly qualified, competent, brilliant judge whose opinion sits pretty much in the middle of mainstream legal thought. Maybe in past years, that would be enough to put her as the swing vote on the Court. In the current makeup, it puts her on the far left - because this Court has moved sharply to the right over the past 30 years, particularly on corporate issues.

Here's a simple way to expose the Myth of Balance. In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative. But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.

First we would have to chop off the Court's right wing, removing Scalia and Thomas and replacing them with Marshall and Brennan. Far to the left of anyone on the Court today, Marshall and Brennan believed that the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.

Next we would have to replace Kennedy with Blackmun. Blackmun was also to the left of anyone on the current Court. Fiercely protective of the right to privacy and opposed to the death penalty on constitutional grounds, Blackmun believed that the social-services agencies were constitutionally obliged to protect vulnerable children from domestic violence and that affirmative-action requirements were broadly acceptable.

Then we would have to leave Breyer, Stevens, Souter, and Ginsburg essentially as they are. All of a sudden, the four would be perceived as the Court's moderates rather than its liberals, operating as a group much like White, Stevens, Powell, and Stewart. (The parallel between White-Stevens-Powell and Breyer-Stevens-Souter is very close; true, Ginsburg is somewhat to the left of Stewart in many domains, but their voting patterns and general approaches are pretty close.)

Finally we would have to assume that Roberts would vote more or less like Rehnquist (which is to say, definitely to the left of Scalia and Thomas) and that Alito would vote more or less like Burger (definitely to the left of Rehnquist).

To say the least, all this would represent a radical change in the Court's composition -- so radical that liberals cannot even fantasize about it. But this radically changed Court would be essentially identical to the supposedly conservative Court of 1980! [...]

The upshot of all these shifts is that what was once on the extreme right is now merely conservative. What was once conservative is now centrist. What was centrist is now left wing. What was once on the left no longer exists.

Cass Sunstein, who works in the Obama Administration, wrote that, and he's absolutely right. And Sotomayor does nothing to rebalance this debate. And I don't know that the President could have gone further than he did. She was generally a good pick. But that's a failure to stand up to conservative messaging. The end result for the country is that the Court shifts to the right, and nobody blinks an eye.

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