The Politics of the Sotomayor Nomination
I have pretty much been silent on the Sotomayor nomination because Tom, Kevin, and the other members of the blog have been doing an outstanding job in providing useful information to our readership. I found the multi-part coverage of Judge Sotomayor’s judicial opinions to be a particularly helpful source of information in understanding Sotomayor’s jurisprudence in a variety of areas. Now that several days have passed since Obama announced Judge Sotomayor’s nomination to the Supreme Court, I would like to give our readers an idea of what they can expect from the remainder of the confirmation process, which is a process that I have spent the better part of a year studying from an academic perspective (including examining the history and politics of past judicial appointments), see here and here. Some questions that I hope to answer in this post include: (1) Will Judge Sotomayor eventually be confirmed?; (2) What are the chief arguments that will be advanced against Judge Sotomayor?; and (3) Will any of those arguments gain traction with Senators or the American public?
Unlike our normal topics on SCOTUSblog, the first and perhaps most important thing to understand about a Supreme Court nomination is that it is primarily, if not entirely, about politics. It is played out in the political arena of the Senate (and to a lesser extent in the Executive Branch). As we will undoubtedly see in the coming months, it often includes warring interest groups that attempt to frame the debate through sound bites and “leaks” in the media. It will include some charges against the nominee that are grossly unfair or even inaccurate, such as the characterization of Justice Alito as a racist or sexist because of his purported membership in the Concerned Alumni of Princeton. But as I have found in researching this area, the types of attacks we are hearing against Judge Sotomayor are pretty much par for the course, neither more or less objectionable than arguments made against past nominees.
Although I do not agree that it “is over,” as Tom stated in a prior post, see here, I do think that, absent some stunning revelation of personal or ethical misconduct by Judge Sotomayor, she will be sworn in this fall as the 111th Justice of the Supreme Court of the United States. Certainly since the nomination of Robert Bork, the most critical time for opposing a nominee is in the first 48 hours after the nomination when the Senators and the American public are first becoming acquainted with the nominee. As an example, Robert Bork faced an uphill battle once Senator Edward Kennedy stood on the floor of the United States Senate and (in my opinion unfairly) proclaimed: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy.” In the first 48 hours after Sotomayor’s nomination, the Obama administration (probably) won the battle of the airwaves and certainly was well-prepared in defending Judge Sotomayor against attacks from the right.
Moreover, even before this nomination was made, it was pretty clear to me that President Obama possessed great discretion in his selection decision. As I have outlined in my essay in the Northwestern University Law Review, the traditional indicators of political constraint in this process–such as the presence of divided government, a short time until the end of a President’s Term, the preferences of the median and filibuster pivots of the Senate, the approval ratings of the President, and the criticality of a particular nomination to the composition of a court–all pointed in favor of a relatively unconstrained choice for President Obama. After the jump, I will evaluate some of the objections made against Sotomayor with a slightly different take than Kevin and Tom, but I will reach the same ultimate conclusion: it is extraordinarily likely that Judge Sotomayor will be confirmed in time for the first Monday in October.
First, some pundits have suggested that Judge Sotomayor is unqualified to sit on the Court, in one instance labeling her the Harriet Miers of the left. While I do not believe that Sotomayor was President Obama’s strongest candidate for the Court among his short-listers, I think it is not credible (and a ridiculous argument) to claim that Sotomayor is not qualified. She has been on the federal bench for approximately eighteen years and has what appears to be a distinguished career as a practicing attorney, judge, and prosecutor. I find it hard to believe that Senators or the American public will classify Sotomayor as unqualified, particularly given the thin credentials of many of our eighteenth and nineteenth century Supreme Court Justices.
The second major criticism of Judge Sotomayor is that she lacks the temperament to sit on the Supreme Court. I do believe that this is a valid line of inquiry, though I doubt seriously that it will stall her nomination. If a nominee were shown to have repeatedly berated attorneys in the past or to show consistent close-mindedness in entertaining the arguments of the parties, then I think it would be perfectly appropriate to examine a nominee’s judicial temperament. From what I have seen and heard of Sotomayor’s performance during oral arguments, I do think that her line of questioning is more tenacious and aggressive than anyone who presently sits on the Court (including Justice Scalia), sometimes even preventing attorneys from answering her questions, but I have not personally seen or heard anything that would suggest that she has clearly crossed the line during any particular argument, much less any consistent pattern of doing so. Nonetheless, I disagree on this point with Tom, who earlier suggested that the public might not care about this issue. If Judge Sotomayor acts intemperately during the hearings or further research suggests that she has crossed the line on the bench, I think that it will lose her votes in the Senate (though not enough to make a decisive difference). After all, it is a relatively objective criterion on which to judge a nominee that is separate from a nominee’s gender or race.
Although I am sure that other critiques of Judge Sotomayor may surface in the coming months, the final line of argument against her is that she cannot decide cases impartially because of statements that she has made in the past. A corollary of this argument is that she is simply a liberal ideologue. In my opinion, the Obama administration seriously miscalculated in describing the selection process publicly as one focused on “empathy.” Apart from being terribly ambiguous, it does invite probing inquiry into whether a nominee can apply the law with impartiality. That mistake was amplified by the speech that Judge Sotomayor gave at Berkeley in which she stated that she would hope that “a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Even President Obama has backed away from that remark by stating that “I’m sure she would have restated it.” In my opinion, this is a line of inquiry that could hurt Sotomayor in the coming months: most Americans want the judiciary to apply and interpret the law impartially without consideration of the demographic or socioeconomic characteristics of the parties before it.
Thus, I break ranks with Tom and Kevin in that I believe that the Ricci case could be a stumbling block for Sotomayor. My experience in studying the judiciary closely for several years is that circuit judges make a concerted effort to publish their decisions when there is no precedent directly on point or where the case is particularly close. Although I am not an expert on Title VII, others with knowledge of this area of the law have suggested that Ricci presents a very difficult question, as evidenced by the Supreme Court’s decision to grant certiorari in the case and the deeply fragmented vote on the Second Circuit in response to the petition for rehearing en banc. It is highly unusual that a fellow Latino judge (Jose Cabranes) described the case as involving a “path-breaking” district court opinion that was affirmed summarily in an unpublished opinion by the Court of Appeals. While it is true that the American public probably does not understand or care about the publication decisions of the federal courts, this case could harm Sotomayor’s chances of confirmation for two reasons: first, President Obama and Judge Sotomayor have implicitly injected race into the evaluation of this nominee–Obama by emphasizing empathy and Sotomayor’s personal characteristics and life history and Sotomayor by her 2001 Berkeley comments mentioned above; and second, racial discrimination is an issue that resonates with the American public and if the lower court decision is shown to be outside the mainstream or to be illustrative of some broader partiality toward members of a particular ethnic group, then it is an aspect of her jurisprudence that should and undoubtedly will be explored during the confirmation hearings.
The latter point takes us to Tom’s recent review of every race-related case in which Judge Sotomayor was a member of the panel. This is an extremely comprehensive study and I do think it is probative of her jurisprudence, but I disagree with Tom that it shows that it is “absurd to say that Judge Sotomayor allows race to infect her decisionmaking.” The statistics that Tom describes are essentially descriptive, similar to the type of information you would get if you were to run the mean, median, range, standard deviation of a statistical sample. While I tell the Ph.D. students that I supervise on dissertation committees that descriptive statistics are extremely helpful, they can only accomplish so much. In this case, we know that when Judge Sotomayor was on a panel of the Second Circuit, the panel upheld a claim of discrimination about 10% of the time. (It would also be helpful to know how Tom defined a “race-related” case, which is certainly subject to reasonable disagreement.) To the average observer (including me), this statistic does not seem to be out of the mainstream, but the only way to know for sure is if we compare her dispositions to the disposition rates of other judges, both within and beyond her circuit. For instance, it is possible that claims of discrimination are upheld at a rate of only 5% by the average circuit judge in the federal judiciary, in which there could be an argument that Judge Sotomayor tends to uphold claims of discrimination, on average, twice as often as her colleagues. (By the way, I certainly do not expect Tom to conduct this type of inquiry as this is the type of paper that can take an academic a year or more to produce.) What is more helpful is to actually read those opinions, as Tom suggests in another post. If the opinions that Tom read are correct on the law, then there really cannot be even a credible argument that Sotomayor is somehow biased in cases involving race.
None of this is to say that Sotomayor faces defeat before the Senate. To the contrary, I think that her confirmation is virtually assured. But based on my extensive research about the judicial appointments process, it seems that the most worthwhile lines of inquiry for Senators and interest groups are to continue to probe Judge Sotomayor’s temperament and, more significantly, to read the cases that will illuminate her jurisprudence in relevant areas (much of which is already being done on SCOTUSblog). And none of this casts doubt on my initial observation that the SCOTUSblog coverage of the Sotomayor nomination has been, for the most part, simply excellent.
UPDATE: After giving the matter further thought, I firmly stand by my original observation that Tom’s study is basically descriptive and does not permit us to reject the conclusion (or hypothesis) that Judge Sotomayor “tips the scales” in favor of minority plaintiffs or defendants in race-related cases. But I think, based on Tom’s dataset and the high rate of agreement of Judge Sotomayor’s colleagues on the Second Circuit in race-related cases, I might suggest a more modest conclusion to take away from Tom’s study (not using statistical terminology purposefully): it is implausible to say that Judge Sotomayor tips the scales in favor of minorities in most or many race-related cases and thus it seems unfair to label her as a racist, as some have suggested.