Supreme Court Nominee Sotomayor's Votes Cross Ideological Lines

By Jerry Markon
Washington Post Staff Writer
Sunday, June 7, 2009

Three years ago, Supreme Court nominee Sonia Sotomayor ruled against a minister who had sued his church for age discrimination, and accused her Republican colleagues of judicial activism when they allowed the case to go forward.

Three months later, Sotomayor supported black and Hispanic prisoners seeking the right to vote, despite age-old laws barring felons from voting.

The decisions are among eight cases that illustrate Sotomayor's complex approach to race, discrimination and the law, and that help inform the debate over whether her ethnic identity would influence her opinions on the court. Taken together, the cases defy depictions of her record as falling neatly into either a liberal or conservative category.

In five of these decisions, Sotomayor supported plaintiffs alleging discrimination, including one case in which she overturned four lower-court judges in ruling for a Hispanic drug defendant who alleged racial bias in jury selection.

In two of the eight cases, she came to a different conclusion. That included backing the constitutional rights of a New York City police office who sent out fliers comparing African Americans to animals. And in the eighth case, she delivered a mixed opinion.

'I Have to Unhook Myself'

Conservative critics have labeled the nominee a liberal judicial activist, seizing on her remark in 2001 that she hoped a "wise Latina woman with the richness of her experiences" would more often than not reach better decisions than a white male. Supporters counter that the 17-year federal judge is fair-minded and follows the law.

In a less-publicized 2001 interview, Sotomayor said she tries to separate her Puerto Rican heritage from her judging. "It is very important when you judge to recognize that you have to stay impartial," she said in a video for a program on Latinos and the law. "I have to unhook myself from my emotional responses and try to stay within my unemotional objective persona. That process can be very weighty at times."

By some estimates, Sotomayor has decided nearly 100 race-related cases in her 11 years on the U.S. Court of Appeals for the 2nd Circuit in New York. Among the cases on race and discrimination, The Washington Post looked at her votes in the eight in which the court issued a divided ruling. Judicial scholars say split decisions provide a revealing window into ideology and are most similar to cases heard by the Supreme Court, which often resolves conflicts among federal circuits.

"These are the cases where the law is somewhat in doubt or ambiguous and where the values of the judge will have the most impact on how they vote," said Donald R. Songer, a political science professor at the University of South Carolina who studies appellate courts.

The split decision attracting perhaps the most attention in legal circles was the one dealing with felons' voting rights. The original lawsuit was filed in 1994 by a black inmate convicted of killing two New York City police officers. Though he was later dropped from the case, other prisoners also challenged the New York law that blocks them from voting, citing historic racial discrimination in the criminal justice system.

A lower court had dismissed the case, and when it reached the full 2nd Circuit, the court upheld that dismissal in a decision written by Judge José A. Cabranes, a Sotomayor mentor. Sotomayor and four other judges said the lawsuit should proceed, even though nearly every state bars felons from voting.

"The duty of a judge is to follow the law," Sotomayor wrote in dissent, arguing that "it is plain to anyone reading the Voting Rights Act" that it covers disenfranchisement of felons.

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