The Case Against the Case Against the Sonia Sotomayor Nomination
May 27th, 2009 | Scott A. Moss
Sonia Sotomayor’s performance as a federal judge had already been criticized in some quarters even before President Barack Obama on Tuesday nominated her to the Supreme Court. These critiques come in three flavors: first, that her decisions show she just isn’t a very good judge; second, that Obama improperly relied on diversity to make an “affirmative action” choice; and third, that she is too intemperate for the job. The bases for these criticisms are thin, persuasive only to the many commentators and senators already inclined to oppose any Obama nominee.
The first line of attack, on Sotomayor’s rulings, does have some very recent ammo: Ricci v. DiStefano, a case the Supreme Court should decide just days or weeks from now. In Ricci, Sotomayor was part of a unanimous three-judge panel that allowed the New Haven Fire Department to jettison the results of a promotion test that resulted in a disproportionate number of whites receiving top scores.
Critics say Sotomayor ruled to allow blatant reverse discrimination, but the reality was more complex for the poor City of New Haven, Conn., which faced competing demands under federal law: (a) avoid discriminating by race, including against whites and also (b) consciously undertake efforts to eliminate even well-intended job tests that have a “disparate impact” on racial minorities, unless the test is a provable “business necessity.” Each is a clear textual command of federal law, and each crashes headlong into each other, making it certain that some judges would rule one way while others rule the opposite.
Whichever way the Supreme Court rules, the decision seems unlikely to be unanimous (most of the recent affirmative action and reverse discrimination cases were 5-4 votes), but that doesn’t mean either side is “bad at judging.” The difference of opinion means only that among skilled judges there is a philosophical difference on a difficult legal question, one we already knew: the current Supreme Court majority (Justices Antonin Scalia, Clarence Thomas, John Roberts, Samuel Alito and Anthony Kennedy) is more aggressive about policing “reverse discrimination” against whites, while a current Supreme Court minority (Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer) and many lower-court judges (such as Sotomayor) do not see any impermissible “reverse discrimination” in applying the rule against allowing most tests that effectively screen out racial minorities.
A broader look at Sotomayor’s jurisprudence shows an impressive body of work, including in the same field as this more controversial recent case. For example, when I first heard Sotomayor’s name floated, I looked up some of her old written judicial decisions, and I was pleased to see that one of my favorite federal appellate decisions in employment law (a field of mine), Raniola v. Bratton, was Sotomayor’s handiwork (a piece of trivia I had forgotten over the years).
In the 2001 opinion, Sotomayor led a unanimous appellate panel in reversing the pretrial dismissal of a female police officer’s claims of discrimination, retaliation, and a hostile work environment. Sotomayor’s opinion was meticulous, addressing every one of the trial judge’s rulings and rationales methodically, with exhaustive citations to prior judicial decisions from around the country — a more scholarly effort than typically is necessary for a decision on an individual New York police officer’s individual claim. Agree or disagree with her on contentious issues like discrimination law, Sotomayor is a thoughtful, scholarly judge whose work holds up with the best of them.
The second line of attack, on Sotomayor as an “affirmative action” choice, implies that Obama sacrificed merit selection in favor of diversity selection. But Sotomayor’s resume qualifications are unimpeachable: 17 years as a federal judge, at both the trial and appellate levels (unlike the nine current justices, whose only judging experience has been on appeals, not trials); impeccable academic credentials (graduating summa cum laude from Princeton University and, then, from Yale Law School, where she was an editor of the school’s most prestigious academic publication, the Yale Law Journal); and varied legal practice experience (she was a criminal prosecutor in Manhattan and then a civil litigator, eventually specializing in intellectual property work).
Still, even the best resume gets you only on a long list of similarly qualified candidates — just ask federal appellate judges J. Harvie Wilkinson, Edith Jones, J. Michael Luttig, Emilio Garza or any of the other impressive Republican Supreme Court candidates whom President George W. Bush passed over in 2005 in favor of then-federal appellate judges Roberts and Alito.
Admittedly, among the list of qualified candidates, Sotomayor was especially appealing because of the diversity she would bring to the court — not just a women to join a currently almost all-male court, and not just the first Hispanic justice, but also an individual who came from humble beginnings. Her mother, a nurse, raised her in the South Bronx after her father passed away in her youth.
The Supreme Court is the least diverse branch of the federal government, in part because due to its low turnover (only one opening every four years or so) and age of its nominees (most nominees are in their 50s), the current Supreme Court largely reflects the pool of 50-something lawyers in the 1980s and 1990s, which in turn reflects the pool of those attending law school in the 1960s — for historical reasons, not the most diverse crowd.
With the Supreme Court, a critical institution that lags the rest of the government (and private industry) in diversity and that is impossible to diversify immediately, Democratic and Republican nominations alike have considered diversity, even of the purely race-and-gender sort — contrary to the “affirmative action is for liberals” folklore. For his first Supreme Court nomination, in 1981, President Ronald Reagan, having promised to appoint the first female justice, picked Sandra Day O’Connor, who turned out to be the most powerful justice of the 1990s and early 2000s despite a light record of prior accomplishment; O’Connor had been a state legislator and state lower court judge, a far cry from Sotomayor’s resume.
A decade later, in 1991 President George H.W. Bush famously declared “the best-qualified person” for the Supreme Court to be Thomas, who at the time had barely a year of judicial experience and was the youngest court nominee in decades — but who just happened to be an African-American Republican available to replace the retiring Thurgood Marshall, the Supreme Court’s only African-American Justice.
President George W. Bush’s ill-fated nomination of Harriet Miers came after he demanded that staffers specifically provide him female names for potential nominees, according to recent published reports.
So the likely “affirmative action” attacks on the Sotomayor nomination miss the mark, both in their insinuation that she lacks impressive qualifications and in their implication that only liberal Democrats consider diversity relevant to a high court as important as it is non-diverse. Someday, the Supreme Court will be diverse enough that presidents will face less such pressure — but the current court of seven white men, one African-American man, and one white woman isn’t quite there yet.
The third criticism of Sotomayor — that she is an intemperate bully — derives largely from a collection of anonymous quotations in the Almanac of the Federal Judiciary. These reviews, submitted by practicing lawyers, are not pretty: “She is a terror on the bench.” “She is very outspoken.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out-of-control manner. She makes inappropriate outbursts.”
Like many lawyers, I do read the AFJ when I need background information on a judge, but its anonymous quotations have to be taken with a few grains of salt. I do not believe the AFJ ever has claimed that the comments they publish are a random sampling of the great many comments they receive, as opposed to a sampling of the most notable comments. More importantly, some of the complaints struck me as suspiciously common attacks on outspoken, high-powered women. How many men are criticized for being “very outspoken”? Do Sotomayor’s critics see it as a bad thing that Scalia frequently is “overly aggressive” on the bench and in his notoriously entertaining public speeches?
Some quick numbers bear out the suspicion of gender bias in the anonymous criticisms of Judge Sotomayor. Fewer than 20 percent of federal appellate judges are female, but of the appellate judges called a “bully” or accused of similar words in the AFJ (outburst, intemperate, temperamental, discourteous, or unpleasant), 40 percent (4 of 10) were women. In sum, female judges are twice as likely as male judges to draw criticism for outspokenness and aggression. (It is theoretically possible, of course, that twice as many female judges as male judges actually are outspoken and aggressive, but there is little reason to think that, and my anecdotal experience is to the contrary — that male judges are more likely to be aggressive, whether in proper or improper ways.)
While my small-number statistics don’t qualify as an official empirical study, anyone with experience in supervisor evaluations of employees, student evaluations of professors, workplace promotion decisions, etc., knows that assertive women are more likely to be criticized as “excitable,” “overly aggressive,” etc. Any fair reading of evaluations, especially anonymous ones, takes into account this well-known gender bias, to avoid penalizing women for Type A traits that draw far less criticism, and even draw praise, in men.
The attacks on Sotomayor’s aggressiveness miss the mark for a more fundamental reason, though. “Judicial temperament” is critical for trial judges dealing with human drama — witnesses reliving traumatic events, emotionally charged evidence, and lawyers’ arguments that tug on jurors’ heartstrings.
But as any practicing lawyer can tell you, appellate litigation is a typically dry affair, vastly different from trials. In appeals, parties and witnesses do not testify, and the lawyer does not issue impassioned hand-over-heart pleas. The vast majority of an appellate lawyer’s work is the solitary researching and writing of lengthy briefs analyzing language from judicial precedents, statutes and regulations. The in-court portion of an appeal is just a short argument on the briefs’ legal analysis, usually just 10 to 15 minutes, to a panel of judges. When a lawyer gets roughed up by a panel of appellate judges, usually the criticism is an impersonal, geeky debate about what amounts to legal minutiae, however important the case is.
Especially at the Supreme Court, appellate litigators tend to be grizzled pros who have been through it all — professional appellate litigators at the Department of Justice, and prestige appellate litigators at private firms, like Roberts in the late 1980s to early 2000s, who served in both of those kinds of appellate litigation jobs.
“Judicial temperament” is a good thing, but it matters mainly for the over 99 percent of judgeships in the country that are not at the United States Supreme Court, which handles only appeals, primarily by seasoned vets of the appellate bar.
The debate on the Sotomayor nomination will be fascinating to watch. The criticisms of her rulings could yield a productive public debate about how judges should decide cases, how the Constitution should be interpreted, and other matters fundamental to our constitutional democracy.
On the other hand, we could get distracted by sideshows: criticism of a Democratic “affirmative action” nomination or criticism of “judicial temperament” based on the exact sort of anonymous complaints about “aggressiveness” that women commonly receive. In short, the nomination could be a wonderful exercise in democracy, or it could be a train wreck of political demagoguery.
About the Author: Scott A. Moss is an associate professor at the University of Colorado Law School.
This article originally appeared in Politico on May 27, 2009. Reprinted with permission by the author.