Guest Voz: Sonia Sotomayor’s record defies charges of judicial activism

LatinaLista — Monica Youn is the author of a new study entitled Judge Sotomayor’s Record in Constitutional Cases.

As an attorney in the Democracy Program of the Brennan Center for Justice at New York University School of Law, a nonpartisan part think-tank, part public interest law firm, part advocacy group that focuses on issues of democracy and justice, Youn, in conjunction with the Brennan Center, felt they could share significant insight to the ongoing debate surrounding Judge Sotomayor and the issue of judicial activism.
Given that the namesake of the Brennan Center was Supreme Court Justice William J. Brennan, Jr., — a position he held for 34 years, until replaced by Justice David Souter, and the very seat for which Judge Sotomayor is being considered — Youn and the Brennan Center staff felt compelled to set the record straight on “judicial activism.”
Declaring that they take no position on Judge Sotomayor’s confirmation, Youn and the Brennan Center staff reviewed a total of 1,194 constitutional cases decided by the Second Circuit during Judge Sotomayor’s service.
The team created a set of distinct criteria to measure the “relative deference or activism” of Sotomayor, in comparison to her colleagues’ actions in particular cases.
Their review of the facts revealed one unmistakable conclusion.
(The following is a condensed version of the full analysis Judge Sotomayor’s Record in Constitutional Cases.)

Fears that unelected, life-tenured federal judges will abuse their prerogatives to rule by judicial fiat are as old as the Republic. As Alexander Hamilton stated in Federalist No. 78, “The Courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequences would equally be the substitution of their pleasure for that of the legislative body.”
The Supreme Court has been criticized for judicial activism ever since Marbury v. Madison established the federal judiciary’s power of judicial review in 1803.
Some have viewed the power of judicial review as the essential safeguard of constitutional rights and freedoms against the tyranny of the majority, while others have worried about usurpation of democratic functions by unaccountable elites.
Accusations of inappropriate “judicial activism” have been hurled at judges at both ends of the ideological spectrum. The Warren Court — including this Center’s namesake Justice William F. Brennan, Jr. — is often invoked as “the poster child of judicial activism.”
However, it bears pointing out that the Warren Court decisions that provoked the most impassioned accusations of “activism” at the time — decisions such as Brown v. Board of Education (ending segregation in public schools), Gideon v. Wainright (establishing the right to counsel in criminal cases), or Mapp v. Ohio (establishing the exclusionary rule in criminal prosecutions) — are today widely considered to be pillars of our constitutional jurisprudence.
The public, political, and academic furor over “judicial activism” shows no signs of dying down. In a 2005 survey conducted by the American Bar Association, a majority of respondents agreed with statements that “‘judicial activism’ has reached the crisis stage and that judges who ignore voters’ values should be impeached.”
The term “judicial activism” has been “omnipresent” in Supreme Court confirmation
hearings over the past few decades, and Judge Sotomayor’s confirmation hearing looks to be no exception.

After we analyzed every constitutional case in the Second Circuit over the past decade, what was striking was the degree of unanimity and consensus on a court roughly evenly split between Democratic appointees and Republican appointees.
Judge Sotomayor joined unanimous decisions in constitutional cases 94.0% of the time, even more frequently than the Second Circuit rate of 93.0% unanimity. Additionally, Judge Sotomayor was part of the majority in 98.2% of the constitutional cases in which she participated, just slightly more often than the Second Circuit rate of 98.1%. She dissented in only 4 of the 217 cases in which she participated.
Judge Sotomayor voted to hold the challenged governmental action unconstitutional in 21.2% of her constitutional cases, as opposed to a Second Circuit rate of 17.5%, a difference of only 3.7 percentage points.
This difference is statistically insignificant. Of the 46 cases in which Judge Sotomayor voted to overturn governmental action, the panel was unanimous in 42 cases, or 91.3% of the time.
Furthermore, Judge Sotomayor was in the majority in 45 of the 46 cases, or 97.8% of the time. Out of the 46 cases in which Judge Sotomayor voted to overturn governmental action, 34 included at least one Republican appointee.
In such cases, Judge Sotomayor voted with the Republican appointee(s) on the panel in 30 cases, or 88.2% of the time.
Judge Sotomayor voted to reinstate a constitutional claim that had been dismissed by the lower court — without ruling on the merits — in 6.9% of cases, slightly higher than a Second Circuit rate of 5.6%.
Judge Sotomayor voted to overrule the lower court or agency in 35.0% of her decisions,
essentially the same as the Second Circuit rate of 35.1%. Again, this is statistically insignificant.
Out of the 76 cases in which Judge Sotomayor voted to overrule the lower court or agency, 71 of the cases (93.4%) were unanimous, two (2.6%) were divided with Judge Sotomayor in the majority, and Judge Sotomayor dissented in three (3.9%) cases.
At least one Republican appointee joined her decision to overrule the lower court or agency in 48 of the 51 cases (94.1%) in which a Republican appointee sat on the panel.
Our analysis shows that — far from revealing her as an “outlier” — Judge Sotomayor’s record is remarkably consistent with that of her colleagues.
Any honest reading of the facts make it abundantly clear that Judge Sotomayor is a mainstream jurist.

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12 Comments

  1. Horace said:

    Doesn’t matter. There is objective evidence that she would fail to uphold the Constitution of the U.S. by replacing its principles with her own. Her summary dismissal of Rici showed bad judgment. The people of the U.S. deserve better. There are dozens of others who would be better candidates and not show ethnic biases. We don’t have to waste time with a flawed candidate just to appease ethnic interests.
    If it wasn’t for Latino ethnic groups and it was a white person, this woman would be toast by now.

  2. Karen said:

    You know that Republicans don’t care about facts. Logic doesn’t work on them. They are ruled by their emotions. In any case, what they say doesn’t matter. Sotomayor will be confirmed.

  3. Horace said:

    “You know that Republicans don’t care about facts. Logic doesn’t work on them. They are ruled by their emotions. In any case, what they say doesn’t matter. Sotomayor will be confirmed.”
    Democrats are ruled by their emotions. Even Obama has stated that a SCOTUS appointee should base his/her ruling on more than just the facts. He believes empathy to be a required trait. That’s proof enough for me of the emotional bent of Democrats.
    As far as I’m concerned, any SCOTUS appointee who believes the court to be some kind of political plumb for his/her ethnic group isn’t worthy of the position. Left wing wacko Latinos view the SCOTUS as some kind of political position, falling under a spoils system. Even SM won’t be blatant enough in her bias to satisfy people like Evelyn.

  4. cookie said:

    The facts are what the Republicans are basing their objections to Soto on.

  5. Evelyn said:

    Even SM won’t be blatant enough in her bias to satisfy people like Evelyn.
    Hahahahahahahaha!!!!lol!
    I didnt create American history Horace, your ancestors did. I only exposed it.

  6. Gwen said:

    “I didnt create American history Horace, your ancestors did. I only exposed it.”
    Yes, they did Evelyn, they built what the vast majority of the world considers a great nation, with the political system and life style that you currently enjoy, and which Latin Americans flee to. Latin Americans suffer under numerous dictators and tyrannies, which they’ve established on their own. One doesn’t have to search far and wide and back into time for examples of your ancestor’s messy history. Just check out the newspapers and you’ll see Chavez and the Honduran home grown dicator. Your ancestors have nothing to crow about when it comes to their history.

  7. karen said:

    Re: “Latin Americans suffer under numerous dictators and tyrannies, which they’ve established on their own.”
    lol Most of those dictators are installed by the US government. For example Agusto Pinochet was installed by our government in 1973. You don’t know anything about history, so don’t embarass yourself.
    As for Sotomayor, the GOP can’t criticize any of her 3,000 judicial rulings, so they question her about her speeches.
    What’s so funny is how these Republican white men act like they’re impartial. What a joke.
    They stopped a vote count to get Dubya into office and we got a war and a global recession. So really, they should just STFU.

  8. Evelyn said:

    Gwen :
    “I didnt create American history Horace, your ancestors did. I only exposed it.”
    Yes, they did Evelyn, they built what the vast majority of the world considers a great nation, with the political system and life style that you currently enjoy, and which Latin Americans flee to. Latin Americans suffer under numerous dictators and tyrannies, which they’ve established on their own.
    ~
    You left out the fact that history books tell your ancestors used the backs of slave labor to built this empire after invading this land and using genocide to rid themselves of the Native Americans already here.
    History books say the small scale genocide of 7 million Jews Hitler patterned after the massive genocide suffered by Native Americans speaks volumes about the tactics used by your ancestors to build, as you state ” what the vast majority of the world considers a great nation, with the political system and life style that you currently enjoy.”
    Those tactics were neither just or moral.
    First of all your ancestors didnt build anything, history books state white people set around and drank tea and attended parties while the US was built on the backs of slave labor provided by people of color.
    Just to set the record straight my ancestors never had a “messy history” until the Europeans arrived. My ancestors were some of the Native Americans whose lives were destroyed by your ancestors.
    BTW, “Chavez and the Honduran home grown dictator,” are a direct result of heavy handed foreign policy and meddeling by the US gov. in those countries to steal their wealth.
    The people of those countries prefer dictators like Chavez who throw the US out, as opposed to corrupt Presidents who collude with Corp. America backed by the US gov. These corrupt presidents sell the wealth of their countries for power and chump change like Mexico does.
    That is the reason immigrants are forced to come to the US to follow the wealth of their countries to feed their families.
    ~
    The United States always gets singled out. But for good reason: It is the world’s largest consumer. Americans take the greatest share of most of the world’s major commodities: corn, coffee, copper, lead, zinc, aluminum, rubber, oil seeds, oil, and natural gas. For many others, Americans are the largest per-capita consumers. In “super-size-me” land, Americans gobble up more than 120 kilograms of meat a year per person, compared to just 6 kilos in India, for instance.
    http://www.alternet.org/environment/136449/consumption%2C_not_population_is_our_main_environmental_threat/?page=entire

  9. rottom said:

    oh please …this must stop!!!! it’s all coming to a dictatership here in america too…. so get use to it or change it …. oh and btw if you disagree with the way things are being run here get out go back home and start your own government. sorry we gobble up so much “stuff” but hey we can and you could too… just need to be brave and take a stand.gosh i am so tired of getting other people out of sistuations they could do themselves=( just very tired of all the b/s of government and all the classifications of americans ..either your just an american or not ..nothing else just an american.ie:white, black, oops african,hispanis,latino,etc….just plain ol american most part we all are predijust …just is

  10. Horace said:

    “The people of those countries prefer dictators like Chavez who throw the US out, as opposed to corrupt Presidents who collude with Corp. America backed by the US gov.”
    I suppose they get what they deserve and can’t really complain when they suffer under dicatatorial rule. You’re spouting utter nonsense now.
    “The United States always gets singled out. But for good reason: It is the world’s largest consumer. Americans take the greatest share of most of the world’s major commodities: corn, coffee, copper, lead, zinc, aluminum, rubber, oil seeds, oil, and natural gas. For many others, Americans are the largest per-capita consumers. In “super-size-me” land, Americans gobble up more than 120 kilograms of meat a year per person, compared to just 6 kilos in India, for instance.”
    It’s call trade, Evelyn, and how the world works. It’s funny that since dominance in Latin America has waned and control returned to the natives, they are still selling us all of that stuff. Yeah, we’re stealing the world’s meat.

  11. Evelyn said:

    I suppose they get what they deserve and can’t really complain when they suffer under dicatatorial rule.
    ~
    Under Chavez’s government, literacy campaigns began, land reform was undertaken, free dentist offices, hospitals and schools were constructed in the poorest neighborhoods, government subsidized supermarkets and business cooperatives sprouted up all over the country. Much of these programs were fueled by oil money; Venezuela has one of the largest deposits of oil in the world. After reforms and partial nationalization of the industry, much of the oil profits steadily flowed into the Chavez administration.
    Though Chavez supporters and their initiatives gained momentum, so did the social divide between Chavistas and anti-Chavistas. This divide came to a head in April 2002, when a U.S.-supported coup d’etat was staged against Chavez. Yet the rebellion was short lived. After an outpouring of support among civilian and military Chavistas, the illegitimate government was pushed from office. Chavez was back in the presidency within two days.
    ~~~
    Hugo Chavez Steps Up for Native Americans and the Poor
    How did it happen that the President of Venezuela reached out to help the poor and the indigenous people of the United States? After two major hurricanes devastated the Southern U. S., a group of U. S. Senators sent out a plea to the major oil companies to help low-income families with energy assistance. Only one company heeded the plea of the senators and that was Citgo Petroleum Corporation headed by Chavez.
    Federal and state funding for low-income energy assistance programs has dropped dramatically in the past few years. A late winter blast in the Northern Plains hit at a time when most of the federal dollars for low-income energy assistance had run out. The late winter freeze left many indigenous people in dire straits. When it comes to a matter of surviving, Indians and other impoverished people reach out to any assistance available.
    Although major oil corporations like Exxon had reaped more profit last year than at any time in their history, they declined the invitation to lend a helping hand to the poor people of America. Hugo Chavez stepped in to fill the gap. What motives would prompt him to do this? Certainly it would not help him politically, at least not in America where one of this Nation’s top religious figures, Pat Robertson, called for his assassination.
    Some of the very poor Indian tribes like the Chippewa Cree of the Rocky Boy Reservation in Montana, the Cheyenne River and the Oglala Sioux Tribes in South Dakota needed the funds in order to keep their people from freezing to death and accepted the donation from Mr. Chavez willingly.
    There is an old saying out here that goes, “You will know me better when you walk a mile in my moccasins.” Hugo Chavez is a member of an indigenous tribe in Venezuela. He has been called “Indio” and worse while growing up as the child of very poor parents. He has walked in the moccasins of the indigenous people.
    I am told that Chavez was appalled when the major oil companies in America did not step forward to help their own poor and low-income people when called upon to do so. He saw this as the kind of colonialism he has grown to despise.
    Chavez is not alone in his mistrust of America. In fact, America’s status is at an all-time low in many Central and South American countries.
    Hugo Chavez is a controversial figure to America, especially amongst its politicians. But he has done much to improve the living conditions, the health care and the educational opportunities for his own people in Venezuela, especially for the very poor and the indigenous. As a matter of record Republican presidential candidate Rudy Giuliani’s law firm lobbies for Citgo Petroleum Corporation. Does he keep his fingers crossed behind his back when he attacks Chavez?
    However, if the profit mongering oil companies of this Nation had stepped forward when called upon, there would have been no reason for Chavez and Citgo to step up.
    There is a lot of respect for President Chavez among the Indian nations of this country. He didn’t make promises that he couldn’t or wouldn’t keep, but instead put his money where his mouth is. American Indians appreciate that form of directness.
    Jodi Lee Rave didn’t think of the politics of the low-income energy assistance offered by Chavez. Instead, she thought of the people that would have suffered unnecessarily if Citgo had not been willing to do what the American petroleum companies and the United States government refused to do. She didn’t have to read about the plight of the indigenous people of America to understand it because like Hugo Chavez and me, she has lived it.
    http://www.huffingtonpost.com/tim-giago/hugo-chavez-steps-up-for-_b_43630.html

  12. Traci said:

    Yes, Latin Americans are suckers for would-be dictator’s promises and often sell their souls to the devil for a pittance, trading intellectual and physical oppression for the few economic bones throw to them. They end up regretting it in the end. Cuba is another example. They accepted oppression for a little security and now their in purgatory for it. Economic and social progress need not be paid for at the expense of freedom. Western Europeans and North Americans know this, but Venezuelans have yet to learn it. The victims of these dicatorships have ultra left wing apologists, like some people who respond to these blogs, who support them.

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