Overview Analysis of Judge Sotomayor's Judicial Record

If confirmed as an Associate Justice of the Supreme Court, Judge Sotomayor would bring more federal judicial experience to the Supreme Court than any justice in 100 years, and more overall judicial experience than anyone confirmed for the Court in the past 70 years. Her 17 year judicial record has proven to be one that is in the mainstream of jurisprudence. Her opinions consistently show judicial restraint, respect established precedent and demonstrate deference to the policymaking role of the elected branches – even when it leads to a result that may be unpopular or different from her personal opinion.

Since joining the Second Circuit, Judge Sotomayor has developed a record as a moderate who agrees with her more conservative colleagues far more frequently than she disagrees with them. As an appellate judge, she has participated in 434 published panel decisions where the panel included at least one judge appointed by a Republican president. In those cases, she agreed with the result favored by the Republican appointees in 413 cases - 95% of the time.

According to a June 20, 2009 article in the New York Times, “[s]everal empirical studies have concluded that she is not particularly prone to overriding policy decisions by elected branches.” A recently completed independent study by the widely respected ScotusBlog of 96 race-related cases Judge Sotomayor ruled on as a Court of Appeals judge “decisively disprove[s] the claim that she decides cases with any sort of racial bias.” These 96 cases cover the gamut from employment discrimination to racial bias in jury selection.

Judge Sotomayor recognizes the appropriate limits of the judicial role. In case after case, Judge Sotomayor has exercised judicial restraint – narrowly interpreting the law as applied to the particular facts before her. In Center for Reproductive Law & Policy v. Bush (2002), Judge Sotomayor affirmed the dismissal of a reproductive rights organization’s challenge to the “Mexico City Policy”, in which the Bush Administration required foreign organizations, as a condition of receiving government funds, to agree to neither perform abortions nor promote abortion generally. The primary First Amendment claim was foreclosed by precedent, the organization lacked standing to bring a due process claim, and its equal protection claim was meritless. In Shi Liang Lin v. United States Department of Justice (2007), three applicants, whose respective girlfriends and fiancée allegedly were victimized by China’s family planning policies, appealed the decisions of the Board of Immigration Appeals (BIA) denying asylum. The Second Circuit held that the statute providing refugee status to applicants who had undergone forced abortions or involuntary sterilization does not provide those applicants’ spouses, boyfriends, or fiancés with automatic eligibility for refugee status. Judge Sotomayor’s concurred in the judgment but wrote separately to point out that because the cases before the Court involved only unmarried petitioners, it was inappropriate for the majority to opine on whether its holding extended to spouses. In Hankins v. Lyght (2006), an age discrimination and free exercise of religion case, Judge Sotomayor authored a forceful dissent in which she accused the majority of “violat[ing] a cardinal principle of judicial restraint.” When the Second Circuit panel applied the Religious Freedom Restoration Act (RFRA) to reverse the district court and remand the case, Judge Sotomayor dissented, arguing that the RFRA was not relevant to the case because the church had waived any RFRA defense when they failed to make any arguments based on that statute. She criticized the majority for deciding an issue that was not properly before the court writing: “a remand is a wasteful expenditure of judicial resources and an unnecessary and uninvited burden on the parties.”

Judge Sotomayor respects the controlling role of established precedent. Regardless of the result, Judge Sotomayor’s opinions have followed Supreme Court and Second Circuit precedent.

In Mendez v. Mukasey (2008), for example, Judge Sotomayor wrote a panel opinion applying circuit precedent to hold that the court lacked jurisdiction to review an immigration judge’s decision on a particular issue respecting cancellation of removal. Yet her opinion also expressed the panel’s view that the petitioner’s arguments on the merits were “persuasive,” and that “[w]ere we operating on a new slate, we would be inclined to hold that the question of whether an alien has established ‘exceptional and extremely unusual hardship’ is a determination for which we have jurisdiction to review.” In In re Air Crash Off Long Island (2000), Judge Sotomayor dissented in a case about the amount of money owed to airplane crash victims, because she felt the majority opinion, which awarded plaintiffs damages beyond what the plain terms of the law allowed, should have “give[n] proper effect to the limiting language, … legislative history, and purpose” of the law at question, as well as “the holdings… of every other court that has considered this issue, and… a long line of cases from at least four other circuits.” In Pappas v. Giuliani (2002), Judge Sotomayor criticized the majority panel opinion in a First Amendment free speech case as entering “unchartered territory in our First Amendment jurisprudence.” The majority opinion held that the New York Police Department did not violate the First Amendment when it fired a police officer because of his racially inflammatory speech. Judge Sotomayor dissented, concluding that “the Court should not “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 and because a government employer fears a potential public response that it alone precipitated.” Judge Sotomayor joined in the unanimous opinion in Didden v. Village of Port Chester (2006), in which a commercial developer brought a lawsuit attempting to harness a town redevelopment project for private gain. While the opinion held that under relevant state and federal law, the lawsuit was time-barred, the panel indicated that even if the lawsuit was not time-barred, the claims would have to be rejected because the court was bound to follow the precedent set by the Supreme Court in Kelo v. City of New London. The opinion did not discuss the merits of the Kelo opinion, but rather acknowledged that “the recent Supreme Court decision. . . . obliges us to conclude that [appellants] have articulated no basis upon which relief can be granted.” And, in Maloney v. Cuomo (2009), a Second Circuit case following the Supreme Court’s decision in District of Columbia v. Heller, a unanimous panel - including Judge Sotomayor - concluded that it was bound to follow another longstanding Supreme Court precedent holding that the Second Amendment applies to the federal government only, and not to the states.

Judge Sotomayor recognizes the duty of judges to give deference to the policymaking role of the elected branches. At her Second Circuit confirmation hearing, Judge Sotomayor expressly spoke out against judicial activism stating: “Our Constitution vests the right to make and administer laws in the legislative and executive branches of our government. Judges impermissibly encroach upon that right by rendering decisions that loosen jurisdictional requirements outside of the scope of established precedents and by fashioning remedies aimed at including parties not before the court to resolve broad societal problems.”

In Hayden v. Pataki (2006), Judge Sotomayor dissented in a case that decided whether incarcerated and paroled felons were allowed to bring a Voting Rights Act challenge to a New York law that prohibiting them from voting. She concluded that the plaintiffs were permitted to pursue their claims under the Voting Rights Act. She explained that “[t]he duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created… But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.” In Ricci v. DeStefano (2008), Judge Sotomayor decided the case based on Second Circuit precedents that were faithful to the intent of Congress. Under the settled interpretation of Title VII, state and local governments had wide latitude to administer what can be complex administrative processes, such as a test for promotions. The Second Circuit’s decision respected the intent of Congress in writing the civil rights law.

In 2000, Judge Sotomayor said, “It is very important when you judge to recognize that you have to stay impartial. That’s what the nature of my job is. I have to unhook myself from my emotional responses and try to stay within my unemotional, objective persona.” Throughout her career, Judge Sotomayor has demonstrated a record of judicial excellence, frequently grappling with a broad range of legal issues and demonstrating a sophisticated grasp of legal doctrine. At every turn, she has upheld the rule of law, and demonstrated herself to be an impartial, non-ideological jurist.