June 22, 2009
The following op-ed “Her Justice Is Blind” by HLS Lecturer Tom Goldstein, appeared in the June 15 issue of the New York Times. Goldstein, a partner at Akin Gump Strauss Hauer & Feld, is a founder of the Scotusblog Web site and a law lecturer at Stanford and HLS.
LONG past the Civil War, and a generation after the formative civil rights struggle, many of us remain incapable of having a conversation about ethnicity that does not devolve into charges of racism.
One recent example of this is the public discussion about the nomination of Judge Sonia Sotomayor to the Supreme Court, and the widespread accusations that she has been unable to dispassionately decide cases involving questions of race. In the rush to find Judge Sotomayor’s “biases,” critics have latched onto her decision in Ricci v. DeStefano, where she ruled in favor of New Haven’s decision to discard the results of a promotion exam for firefighters because too few minorities scored high enough. Some infer from this that Judge Sotomayor must be biased against whites.
Overlooked in the hysteria over this one decision is that Judge Sotomayor considered issues of race almost 100 times as an appellate judge. Having now reviewed every single race-related case on which she sat in more than a decade on the United States Court of Appeals for the Second Circuit, I’ve concluded that Judge Sotomayor does not allow bias to infect her decision-making.
In addition to Ricci v. DeStefano, Judge Sotomayor has participated in 97 race-related cases. Of these, the court of appeals rejected the claim of discrimination roughly 80 times and agreed with it 10 times. (The remaining cases involved other kinds of claims or dispositions.) In the 10 cases in which the court of appeals favored claims of discrimination, nine resulted in unanimous rulings and seven involved at least one Republican-appointed judge. In the single time a judge dissented from a ruling in which Judge Sotomayor participated, the dissent was over a technical question, not race discrimination.
In total, Judge Sotomayor has disagreed with her colleagues in race-related decisions — a fair measure of whether she is an outlier — only five times in 11 years. In that entire time, Judge Sotomayor has only twice dissented from a ruling on a substantive question of race discrimination.
In her opinions regarding civil rights laws, Judge Sotomayor has written about principles of restraint. She has stressed that “the duty of a judge is to follow the law,” so that judges have no power “to disregard the plain language of any statute or to invent exceptions to the statutes” created by Congress.
That principle seems to run consistently through her rulings on race-related cases. Dissenting from a decision to permit the New York Police Department to fire an employee for sending hate mail, she wrote, “To be sure, I find the speech in this case patently offensive, hateful and insulting.” But, she added, “while we are more comfortable when the speech we are protecting involves protestations against racial discrimination, it is not our role to approve or disapprove of the viewpoint advanced.”
In rejecting the discrimination claims of black passengers against an airline based on an international treaty limiting suits against carriers, she rejected the plaintiffs’ assertion that “we should nonetheless carve out an exception for civil rights actions as a matter of policy” in light of “the specter that our decision will open the doors to blatant discrimination aboard international flights.”
That is not to say that Judge Sotomayor is inattentive to questions of racial discrimination. In Gant v. Wallingford Board of Education, for example, she dissented from the majority’s ruling that a school’s favorable treatment of white students could not prove that a young black student who was demoted to a lower grade was the victim of discrimination. In Hayden v. Pataki, she concluded that felon disenfranchisement laws are discriminatory and violate the Voting Rights Act.
Her decisions in these cases would hardly make her an extremist. The now notorious Ricci v. DeStefano was a genuinely tough call. Yes, the firefighter plaintiffs had a serious claim that they suffered discrimination when the city refused to apply a promotion test they passed. But the city argued that it feared a lawsuit by minority firefighters alleging that the city’s promotion tests unintentionally discriminated against blacks and Hispanics. A ruling in the city’s favor was not necessarily ideological.
The public debate ought to be about what the law should command in these kinds of difficult cases. Unsubstantiated charges of racism distract us from these questions and demeans our justice system.