Court Watch: An Analysis of Sotomayor’s Decisions on Race-Related Cases

By Garance Franke-Ruta
The indispensable SCOTUSBlog, from the Washington-based firm Akin Gump Strauss Hauer & Feld LLP, has published an analysis of every race-related decision made by appellate Judge Sonia Sotomayor, finding that she rarely disagreed with her colleagues on cases involving claims of discrimination.

Meanwhile, Pollster.com has aggregated the latest surveys and found a huge gender gap in favor of Sotomayor among female Republicans as compared with male members of the GOP, but no dramatic gender difference among Democrats.

Tom Goldstein, a partner at Akin Gump who has argued more than 20 cases before the Supreme Court, writes: “Other than Ricci, Judge Sotomayor has decided 96 race-related cases” while on the U.S. Court of Appeals for the 2nd Circuit. The reference is to the well-publicized case Ricci v. DeStefano, which involved a promotion exam for New Haven, Conn., firefighters. The case is now under review by the Supreme Court.

“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,” he continued; “the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous.”

“Of the roughly 75 panel opinions rejecting claims of discrimination, Judge Sotomayor dissented 2 times,” Goldstein writes.

“The numbers relating to unpublished opinions continued to hold as well. In the roughly 55 cases in which the panel affirmed district court decisions rejecting a claim of employment discrimination or retaliation, the panel published its opinion or order only 5 times,” Goldstein writes.

“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. … Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.”

And Pollster.com’s Margie Omero writes: “Yesterday I posted on some Gallup data on voter reactions to Sotomayor. Quinnipiac released new data today, and both Gallup and Quinnipiac were nice enough to share party by gender crosstabs. These data continue to show that women, particularly Republican women, respond strongly to Sotomayor’s nomination. …

“In the Gallup poll, both Democratic and Republican women are more supportive of Sotomayor than their Democratic counterparts. The difference is more modest among Democrats (men: +46 ‘excellent/good pick’ minus ‘only fair/poor’ pick; women: +54). Among Republicans the difference is sizable (men: -44; women: -11).

“The Quinnipiac poll is consistent. There is no difference in the ratings of Democratic men (+74 ‘approve’ minus ‘disapprove’) and Democratic women (+76). But Republican women are almost evenly divided on Sotomayor’s nomination (-9), while Republican men are more decidedly disapproving (-39).”

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