Sotomayor II

There's been concern expressed that a Justice Sotomayor would be inclined to side with discrimination claimants. (I think the concern stems from the wise-Latina statement, but I may be missing something more about it.) I've seen the statistical analysis by Tom Goldstein writing at SCOTUS blog about Judge Sotomayor's votes in discrimination cases. He finds the following:

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.

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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.

Goldstein's analysis is open to criticism: "Now, this doesn't tell us much. Each case should be examined individually, on the merits, because what really matters is not whether she rejected discrimination claims but whether she was right to reject them." Michael Stickings at The Reaction (H/T Legal Insurrection)

But, as Stickings concludes: "Still, Goldstein's findings do effectively refute the (discriminatory) claims of Sotomayor's critics on the right -- and there are many of them -- that she is racist, and that she allows her own identity as an Hispanic woman to shape her legal opinions."

She's smart. She's qualified. She doesn't remind me at all of Harriet Myers.

She's a baseball fan. (What? That's not relevant? Keeps coming up in the hearings, so I was thrown off.)

She'll be fine.

Sotomayor

I can't say I've followed closely the back-and-forth about Judge Sotomayor's qualifications and philosophy. I have of course heard the brou-ha-ha about her "wise Latina" woman line in some speeches and the implication that she'll decide cases from her heart, rather than intellect, because of her ethnic roots. I haven't heard much of the confirmation hearings, but all of the Republican questioning I've heard has focused on this topic. I understand a couple things about that "wise Latina" line: 1) it was a rhetorical riff on something Justice O'Connor had said; and 2) Rethugs didn't get their undies in a bunch during Justice Alito's confirmation hearings when he said:

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

Here (h/t Glenn Greenwald).

David Souter

retiring. I'm certainly not broken up but can't help but be concerned about what is about to be foisted upon me.