Goldstein’s Sotomayor Analysis Complete

Ken AshfordRace, Supreme CourtLeave a Comment

I referenced this before:

Over at SCOTUSblog, Tom Goldstein notes all proverbial ink being spilled over Sotomayor's race, along with the implicit and explicit statements that her supposed bias will prevent her from judicating equally and fairly.

So he decided to do something novelread her decisions.

Goldstein is done with his analysis, and the results should put to rest any claim that Sotomayor has a race-based approach to the law:

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.  Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred.  (In another case (Pappas) she dissented to favor a white bigot.)  She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims.  Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

Read the whole thing.

The Pappas case, in which Sotomayor favored the white "bigot" is illuminating:

The plaintiff was a white employee of the New York City Police Department — working in a clerical position in information management — when he was fired for having sent blatantly racist and anti-Semitic replies in response to charity requests he received in the mail.  Pappas admitted doing it, and said he did it to protest the charity requests.  The NYPD fired him for having sent the replies on the ground that it did not want racist employees.  He sued the NYPD, alleging that his First Amendment rights were violated by the firing, because he was clearly fired due to the content of the political views he expressed.

The district court judge dismissed Pappas' case, finding that the NYPD had a legitimate need to exclude racists from its employ, a need which outweighed Pappas' First Amendment rights.  On appeal, two of the three judges on the Second Circuit panel agreed with that ruling and dismissed Pappas' case.  But not Sotomayor.  She wrote a dissent emphasizing the strong First Amendment interests of Pappas' that were being violated — however contemptible it was, it was pure political expression — and she argued that it he was entitled to a jury trial to decide if the NYPD, under Supeme Court precedent, had any right to fire him for it. 

This is what Sotomayor wrote:

"In the typical public employee speech case where negative publicity is at issue, the government has reacted to speech — which others have publicized — in an effort to diffuse some potential disruption. In this case, whatever disruption occurred was the result of the police department's decision to publicize the results of its investigation, which revealed the source of the anonymous mailings. It was, apparently, the NYPD itself that disclosed this information to the media and the public. Thus it is not empty rhetoric when Pappas argues that he was terminated because of his opinions. Ante, at 147-48.  The majority's decision allows a government employer to launch an investigation, ferret out an employee's views anonymously expressed away from the workplace and unrelated to the employee's job, bring the speech to the attention of the media and the community, hold a public disciplinary hearing, and then terminate the employee because, at that point, the government "reasonably believed that the speech would potentially… disrupt the government's activities." Heil v. Santoro, 147 F.3d 103, 109 (2d Cir.1998). This is a perversion of our "reasonable belief" standard, and does not give due respect to the First Amendment interests at stake."

That's Sonia Sotomayor, one of only four judges supporting the right of a white bigot to speak and not be fired.