Sotomayor: the best we can expect?

A. Zarkov writes:

While Sotomayor’s comment about the wise Latina and her a off-the-cuff remark about policy making at the appellate level are troubling, she could very well be the best of a bad lot. Tom Goldstein over at Scotusblog analyzed 96 race-related cases where she sat on the appellate panel. His conclusion:

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. … So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.

One needs to know a little about appeals work to put Goldstein’s conclusion in perspective. When one appeals a trial court, you don’t get a retrial. The appellate court assumes all the facts determined at the trial level are true. The review is strictly for legal error by the trial judge. An appellate court will not reverse if the judge’s decision is correct under any valid legal theory. So if a judge gives the wrong reason for his decision, the appellate court will uphold him if they can find another line of reasoning that justifies that decision. In other words, reviewing courts bend over backwards to uphold trial courts. As such very few appeals are won. Therefore I’m not terribly impressed by Goldstein’s statistics on Sotomayor’s race-related cases. If most appeals in discrimination cases come from the plaintiff (the party claiming the discrimination), we would expect Sotomayor do reject many claims of discrimination because it’s so hard to win an appeal. On the other hand, if it’s 50-50, that’s another story. However I am impressed by the following from Goldstein.

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.

In other words Sotomayor gives no indication of being a rogue judge. Or at least a rogue judge with reference to the Second Circuit. A whole circuit court can be somewhat rogue as we have the 9th.

If the Republicans mount an aggressive campaign against Sotomayor and manage to keep her off the Supreme Court, they might be making a big mistake. Her replacement could be a lot worse. They will have used up their capital and energy, thus allowing someone much more radical to get seated. It’s even possible that Obama has selected Sotomayor for this very reason. He knows a radical has a better chance as a second choice.

Jack S. writes:

I agree with Mr. Zarkov. Sotomayor looks like a moderate compared to the hard-eyed shrews waiting in the wings. Look at Napolitano, Granholm and Kagan. Looking at Sotomayor’s puffy face and bloated eyelids I think of Shakespeare:

Let me have men about me that are fat,
Sleek-headed men and such as sleep a-nights.
Yond Cassius has a lean and hungry look,
He thinks too much; such men are dangerous.

In the same vein I think there is less to fear in the way of activist initiative from an affirmative-action token-Hispanic drone like Sotomayor than someone with a superior intellect like the alternatives mentioned.

LA replies:

It’s funny you say this, because just a few minutes ago I saw a photo of Soto in today’s NY Daily News, with the puffiest eyelids you ever saw. This can’t be a throw back to Asian ancestors 15,000 years ago (and in any case, the paleo-Indians were not descended from the classic East Asian racial type but were a side-branch). She must have some East Asian ancestor much more recently in her family tree. In any case, as I said the other day, she doesn’t look at all Puerto Rican, and doesn’t look like her relatively Caucasian-looking mother, but more like a generic member of the Bronze people, plus the Northeast Asian eyelids. So, since Sotomayor is so heavily into racial representation, as is the president, maybe her role is to represent both Hispanics and Asians. So she’s not just a two-fer (female Hispanic), but a three-fer. Now if only she were a lesbian, the Supreme Court would have all the diversity bases covered for the next 20 years and we could go back to picking people by ability.

However, as Jack suggested, given that we have a left-wing president, we may not want him to be picking highly capable left-wing judges.

Here’s the online version of the photo, but it’s a full figure shot and her eyes and eyelids don’t stand out clearly. The version of the same photo in the print edition is a cropped closeup and her features are seen much more clearly. This often happens. I will see a striking photograph in the print edition of a paper, and look for it online, but the online version isn’t nearly as good. Much more thought goes into how the photos are cropped and laid out in the print edition.

For better viewing, I uploaded the photo as a pop-up image and doubling its dimensions to enlarge the face, but the size as displayed in the popup remained the same as it is at the News, no nothing was gained.

Jack S. writes:

I don’t think her physiognomy is due to any Asian ancestry. The photo released of her with her parents shows two people that look close to 100 percent Caucasian as far as you can tell from a small old black and white photo. It is possible she has some medical condition responsible for facal swellling. The apparent degree of swelling evident in recent photos of her doesn’t seem to be consistent with her mild to moderate obesity.

There is a long list of conditions in the differential diagnosis of facial sweling with hypothyroidism and congestive heart failure being two strong contenders. This another point in her favour from a conservative standpoint compared to a younger, healthier nominee.

Posted by Lawrence Auster at June 01, 2009 03:33 PM | Send