Morning Bell: The Sotomayor Pattern

Robert Alt /

Yesterday’s Supreme Court opinion in Ricci, the New Haven firefighters case, provides a window to what will inevitably be a significant line of questioning in Judge Sotomayor’s confirmation hearings. After all, Judge Sotomayor not only reached the wrong decision in this case, allowing overt racial discrimination in protection of what were essentially soft racial quotas, but she did so in a dismissive one-paragraph opinion which seemed calculated to bury the case from future review. Both her dismissive treatment of important rights in this and a prominent Second Amendment case, and the apparent bias that these cases display will likely be fertile ground for questions in her confirmation hearings.

In response to the Supreme Court’s opinion, defenders of Sotomayor have attempted to paint her opinion as one showing that she is not an activist. White House spokesman Robert Gibbs said: “Some of the very concerns that members of the Senate have expressed about judicial activism seem to be, at the very least, upside down in this case. Her ruling on the Second Circuit denotes that she’s a follower of precedent[.]”

The only problem is that it’s just not true. But you don’t need to take our word for it. Clinton appointee to the Second Circuit, Judge José Cabranes, expressed his deep concerns about the dismissive approach utilized by Sotomayor and her colleagues in this case. Far from following precedent, Cabranes, in stating why he thought the full Second Circuit should have reviewed the Sotomayor panel’s decision, stated that “[t]he questions raised in this appeal . . . are indisputably complex and far from well-settled.” (emphasis added). He noted that the case raised issues of “first impression”—that is, questions never decided before by the Second Circuit. So much for just following precedent.

Judge Cabranes added that Sotomayor’s panel’s “perfunctory disposition rests uneasily with the weighty issues presented by this appeal” and emphasized that in cases “[w]here significant questions of unsettled law are raised on appeal, however, a failure to address those questions-or even recognize their existence-should not be the approved modus operandi of the U.S. Court of Appeals.” He concluded with what is perhaps the core of the indictment against Sotomayor’s handling of this case: “this Court has failed to grapple with the questions of exceptional importance raised in this appeal.”

Regrettably, Sotomayor has demonstrated a pattern of failing to grapple with questions of exceptional importance. In her opinion in Maloney v. Cuomo, in which she found that the Second Amendment does not apply to the states, she tersely declared that a state statute restricting possession of weapons does not implicate a fundamental right—the full consideration of which was measured in a handful of words. Like in the firefighters case, she concluded this without even grappling with the arguments–indeed without any explanation whatsoever.

This is all the more troubling because of her statements embracing personal bias. In the very same speech where she issued the well-calculated and well-quoted assertion about the superior judgment of wise Latina women, she questioned whether it is possible for judges to overcome personal sympathies or biases “in all or even in most cases.” She even seemed to think that ruling based upon these biases is somehow patriotic: “I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

Given these statements embracing bias, and her embarrassingly inadequate judicial treatment of both the firefighters case and the Second Amendment case, Senators taking up her nomination on July 13 will necessarily need to explore whether her short shrift treatment of serious statutory and constitutional issues in these cases is a reflection of her own biases, or whether, on the brighter side, it is simply an indication of incompetent judging.

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