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Michael C. Dorf

Judge Sotomayor Proves Insufficiently Activist for Some Republican Senators


Wednesday, July 15, 2009

On the opening morning of Judge Sonia Sotomayor's Senate Judiciary Committee hearing, South Carolina Republican Senator Lindsay Graham should have won a prize for the most honest statement. He said to the nominee: "Unless you have a complete meltdown, you are going to get confirmed." As this column goes to press after two days of hearings, there has been no meltdown, and there is no realistic chance that there will be one. Thus, there is no suspense about the ultimate outcome of this nomination.

Nonetheless, there have been a number of interesting developments. In this column, I shall address how Judge Sotomayor has thus far parried the three primary lines of attack launched by Republican Senators who have expressed concerns about her record: (1) Judge Sotomayor's statements in various speeches about the relevance of her background and experience to judging; (2) her recent ruling that the Second Amendment right to keep and bear arms does not bind the states (as opposed to the federal government); and (3) her decision in the New Haven firefighter case, recently overturned by a 5-4 vote in Ricci v. DeStefano.

As I shall explain, at least in response to questions on the second two topics, Judge Sotomayor defended her record by showing herself to be a very strong believer in precedent. Accordingly, although they are unlike to admit it, her critics find themselves in the awkward position of complaining that Judge Sotomayor is not activist enough.

The Role of Ethnicity and Experience in Judging

Like her critics outside of the Senate chamber, some Republican Senators have zeroed in on Judge Sotomayor's now-famous statement that she would hope that a wise Latina woman would, more often than not, reach a better decision than a white male without the same life experience. As I argued in an earlier column, this statement, taken in context, is simply an affirmation of legal realism--the view that in the sorts of cases that generate federal appeals, the law contains gaps and ambiguities, and that how a judge fills those gaps and interprets those ambiguities will vary depending on his or her life experience.

To be sure, during yesterday afternoon's session, Judge Sotomayor disavowed legal realism, which Senator Graham had inaccurately described as a "touchy feely" approach to judging. But legal realism, best understood, is not an approach to judging at all. It is a description of how judges actually decide cases, rather than a prescription for how they should decide cases. Unfortunately for the sake of the public who tune into these hearings in the hope of learning a bit about the law, Judge Sotomayor accepted Senator Graham's mischaracterization of legal realism, but then went on to reject it and all other "labels" for her approach to judging.

Nonetheless, in various speeches over the years, Judge Sotomayor clearly embraced legal realist views, if not the label. Yet thus far in her confirmation hearings, Judge Sotomayor has sometimes sounded more like a legal formalist--someone who thinks that even in hard cases, the legal materials determine a uniquely correct result that does not depend on the identity of the judge.

For example, during an exchange with Alabama Republican Senator Jeff Sessions yesterday, Judge Sotomayor continually dodged the apparently plain meaning of the following statement she made in a 2001 speech: "I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate." Senator Sessions was very concerned that a judge or Justice might ever think it was "appropriate" to give effect to her "sympathies," or even worse, her "prejudices," in deciding a case. Later in the day, Arizona Republican Senator Jon Kyl sounded the same theme in criticizing this and other speeches.

In response, Judge Sotomayor said that what she was trying to say was the exact opposite--namely, that judges ought to examine their sympathies and prejudices to ensure that they do not let these extraneous factors cloud their views of the law. Senators Sessions and Kyl expressed understandable frustration that this interpretation was precisely the opposite of the words Judge Sotomayor had used in the 2001 speech.

That frustration was justified but ultimately unavailing, and not just because the Democrats have enough Senators to override any Republican attempt at a filibuster. Although the sentence that Senator Sessions quoted does indeed suggest that there are circumstances when a judge should consciously give vent to prejudices, Judge Sotomayor cannot possibly have meant that. No judge would seriously maintain that a prejudice is a legitimate basis for a legal decision.

And indeed, earlier in the very same speech quoted by Senator Sessions, Judge Sotomayor said she agreed with the notion "that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law." Admittedly, in true legal realist fashion, she then went on to caution that this may not always be possible, but she clearly accepted the aspiration. Accordingly, Judge Sotomayor sounded credible yesterday when she said that the rhetoric she used in the language Senator Sessions quoted and in other speeches "fell flat."

Conversely, the effort to portray Judge Sotomayor as a practitioner of identity politics will also fall flat if it depends on parsing her speeches, rather than the decisions she has made in her many years on the federal bench. Indeed, Judge Sotomayor and supportive Democratic Senators repeatedly directed the critical Senators to the thousands of cases she has decided as a judge. Of these, two decisions appear to have generated the most fodder for the skeptics.

The Second Amendment and the States

Last year, in District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects a personal right to possess firearms for self-defense in the home. Because the case involved the District, it arose under the Second Amendment itself, which limits the federal government but not the states. However, under a series of Supreme Court rulings, most provisions of the Bill of Rights have been made applicable to the states by operation of the Fourteenth Amendment. Constitutional lawyers say that the Fourteenth Amendment "incorporates" these rights.

This past January, Judge Sotomayor was part of a three-judge panel that rejected the argument that the Fourteenth Amendment incorporates the Second Amendment. The short per curiam (that is, unsigned and unanimous) opinion in Maloney v. Cuomo cited an 1886 case, Presser v. Illinois, for the proposition that the Second Amendment does not apply to the states. Yet in a footnote in Heller, Justice Scalia's majority opinion had cast doubt on the continuing vitality of Presser and two other Nineteenth Century cases to the same effect. He had noted that these cases were decided prior to the great body of Supreme Court rulings establishing that other provisions of the Bill of Rights do limit the states.

Given that footnote and the modern test for incorporation of rights against the states, Utah Republican Senator Orrin Hatch wanted to know why Judge Sotomayor so readily relied on the old Presser case. Why did she not take the Heller footnote as an invitation to consider whether the modern test for incorporation makes the Second Amendment applicable to the states?

The short answer to that question can be found in the Maloney opinion itself. Under the 1989 Supreme Court decision in Rodriguez de Quijas v. Shearson/Am. Express, Inc., lower federal court judges are forbidden from disregarding old precedents that have not been formally overruled by the U.S. Supreme Court. The Justices there explained that if a Supreme Court precedent directly applies "in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions." Because the Heller Court questioned but did not overrule Presser, Judge Sotomayor was bound to follow Presser in the Maloney case.

Senator Hatch nonetheless gamely tried to argue that Presser did not directly apply in the Maloney case. He said that Presser only rejected the Fourteenth Amendment's Privileges or Immunities Clause as a basis for incorporating the Second Amendment, while the modern incorporation cases rely on the Fourteenth Amendment's Due Process Clause.

Senator Hatch was wrong about that. Although the bulk of the Presser opinion addresses the Privileges or Immunities Clause, the petitioner in that case also advanced a Due Process claim. The Court flatly rejected it, saying the argument was "so clearly untenable as to require no discussion." However thinly reasoned, that holding was squarely on point in Maloney, and thus remains binding unless and until the Supreme Court says otherwise.

Could a federal appeals court judge nevertheless have found a way to rule that the Fourteenth Amendment does incorporate the Second Amendment? Sure. The Rodriguez de Quijas rule is, after all, essentially unenforceable. Suppose an appeals court disregards the rule and ignores a seemingly discredited--but not yet formally overruled--precedent. If the Supreme Court ultimately agrees with the appeals court on the merits, the appeals court ruling will be affirmed--even though the appeals court was supposed to leave the act of overruling to the Supreme Court in the first place.

But to say that Judge Sotomayor erred in Maloney by not taking a step that she was officially forbidden to take would be quite odd. Surely it is a mark of judicial restraint on Judge Sotomayor's part that she appears never even to have considered flouting the Rodriguez de Quijas rule--and surely Senator Hatch cannot be suggesting that her failure to do so is in any way a strike against her.

The New Haven Firefighter Case

A very similar dynamic was in play in the repeated discussion of the Ricci case. As I noted in my column on Ricci, in dissent Justice Ginsburg went out of her way to note that the Second Circuit panel was bound by a 1999 Second Circuit ruling involving a Long Island police department, Hayden v. County of Nassau.

Here too, Senator Hatch thought that Judge Sotomayor gave an earlier precedent more weight than appropriate. He noted that the Hayden case involved "a challenge to the design of the . . . employment test rather than the results of the test." Unlike Senator Hatch's faulty distinction between the Privileges or Immunities Clause and the Due Process Clause in the colloquy on the Maloney case, his proffered distinction between the facts of Hayden and the facts of Ricci was at least plausible.

However, once again, Judge Sotomayor had an answer rooted in judicial restraint: She said that Hayden articulated a broad principle under which an employer's formally race-neutral efforts to avoid an employment decision that has a substantial disparate impact on a protected group simply does not amount to discrimination under federal law. In both Hayden and Ricci, the decision challenged--respectively, not to administer a test and not to use the results of a test--applied to all who sought the jobs in question, and was thus formally race-neutral. In both cases as well, the challenged decision aimed to avoid a disparate impact. Thus, Judge Sotomayor reasonably concluded that the legal rule articulated in Hayden bound her in Ricci.

Was that conclusion unassailable? Of course not. But it is worth noting that the complaint voiced by Senator Hatch, with respect to both Maloney and Ricci, is that Judge Sotomayor was insufficiently creative. Senator Hatch implies that she should have considered herself less bound by precedent than she actually did.

There is more than a little irony here. Although the term "judicial activism" is often used simply as an epithet, one of its standard meanings connotes disregard for precedent. An activist judge reaches whatever results he or she favors on policy grounds, and disregards precedent.

Yet in the very same hearing in which Republican Senators are fretting over the possibility that Judge Sotomayor is an activist, their chief line of attack on her actual decisions boils down to a complaint that she is too respectful of precedent. Is it possible that Judge Sotomayor is not enough of a judicial activist for her Republican critics?

Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at

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