Judge's Votes Show No Single Ideology

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.

Like much of her writing, which often relies heavily on legal precedent, the dissent was cast in blunt, unemotional language.

Roger Clegg, president of the conservative Center for Equal Opportunity, criticized the result. "To say this is all part of a giant conspiracy to keep African Americans and Latinos from voting is absurd," he said in an interview.

Kevin Russell, one of a group of lawyers the White House has put forward praising Sotomayor's record, said that her position is "controversial" but that "it would be unfair to characterize it as showing a judge who disregards the law or engages in judicial activism."

Equally controversial among conservatives is a 2000 decision in which Sotomayor backed African American plaintiffs from a small town in New York. The case stemmed from an assault on an elderly woman who could not identify her assailant but said he was black, based on her view of his hand and forearm. She told police he had cut his hand as they struggled.

Police then stopped more than 200 minorities on the street and examined their hands for cuts, prompting a racial-discrimination lawsuit. A three-judge panel dismissed the discrimination portion of the case, saying the plaintiffs were questioned "on the altogether legitimate basis of a physical description given by the victim of a crime."

The full court rejected a request to rehear the case; Sotomayor disagreed with that decision. She signed onto a dissent with three other judges that called the panel decision "egregious" and said that her colleagues had legitimized police actions that, "even if they might ultimately be deemed valid, are . . . extremely offensive to a much abused part of our population."

'Judicial Restraint'

By contrast, Sotomayor showed little support for the case of the minister who sued over his church's mandatory retirement age. A lower-court judge threw out his allegation of age discrimination, but a 2nd Circuit panel reinstated the suit. The 2006 opinion by Republican appointees Ralph K. Winter Jr. and Barrington D. Parker Jr. said the claim fell under a different federal law than the one the minister sued under and that it should be reconsidered under the second statute.

Sotomayor countered that the suit should be dismissed, that the second law "is not relevant to this dispute." Echoing language often used by conservatives, she wrote, "The majority's opinion thus violates a cardinal principle of judicial restraint."

Supporters say the case involving New York City police officer Thomas Pappas also shows Sotomayor is no reflexive liberal. Pappas had responded to requests for charitable donations from another police department by sending back fliers that ridiculed black people, warned against the "Negro wolf . . . destroying American civilization" and said Jews control the television networks.

Pappas was fired, and he filed suit, alleging that his First Amendment rights to free speech had been violated. A lower court threw out his lawsuit, and a three-judge 2nd Circuit panel agreed.

In a strongly worded dissent, Sotomayor came out in favor of the officer. "To be sure, I find the speech in this case patently offensive, hateful, and insulting," she wrote. "The Court should not, however, gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like."

Scott Moss, a University of Colorado professor who was among the group put together by the White House, said, "If she were really a judge who ruled on personal or ideological preference, Pappas is about the last guy you'd want to stretch the law for."

Clegg, however, said that decision provided little comfort because "liberal judges" and organizations such as the American Civil Liberties Union frequently support free speech.

Research director Lucy Shackelford and staff researcher Madonna Lebling contributed to this report.

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