Sotomayor Answers Reveal Long History of Accomplishments — and Are Sure to Be Pounced On

The 172-pages of answers (not including the appendix) provided by Judge Sonia Sotomayor to the Senate Judiciary Committee on Thursday reveal, as one would expect, a long resume replete with the academic credentials and professional honors we’ve already heard about, plus lots of details of key opinions and the varied list of publications and speeches that a groundbreaking judge like Sotomayor — among the first female Hispanic judges ever appointed to a U.S. court — tends to give.

But chances are that her critics will seize on the speeches and writings pertaining to race and discrimination — the primary source of controversy for this nominee. Like a 1974 letter to the editor of the Daily Princetonian in which, as an undergraduate, she criticized “an institutional pattern of discrimination” at the college, or a letter that criticized the lack of diversity among candidates considered to be a university Dean. Then there’s the 1981 letter to New York Governor Hugh Carey from the Puerto Rican Legal Defense and Education Fund, written while Sotomayor was on the organization’s board, which said that “capital punishment represents ongoing racism within our society.”

Those who have called Sotomayor “racist” will likely charge, based on these and a smattering of other comments in speeches or reports addressing gender or race discrimination during her three decades as a lawyer, that she’s too focused on remedying discrimination and therefore likely to be an “activist” on the Supreme Court supporting race-based remedies.

As I’ve written before, given how much Chief Justice John Roberts has pulled the court in the other direction, Sotomayor’s views based on a more varied background are an important antidote to the powerful right wing of the court. And as Tom Goldstein has pointed out, her opinions on the court of appeals hardly suggest any activism on her part when it comes to race-related claims.

But what her lengthy and detailed responses to the Senate highlight is how minuscule and irrelevant these decades-old expressions of Sotomayor’s personal sentiments really are in the context of her long and illustrious career. While sure to provide continued fodder for talk-show hosts, focusing on these claims and calling them evidence of racism is ultimately a doomed strategy for attacking an obviously qualified candidate. Trying to smear Sotomayor with writings from her student days makes little more sense than did trying to smear President Obama with things former Weatherman Bill Ayers did when Obama was a child.

It’s worth noting, too, that there is one thing that’s not asked in the questionnaire but is actually relevant to her qualifications for the Supreme Court, and which I dug up from her 1997 confirmation hearing. While some conservative pundits have misleadingly batted around her reversal rate by the Supreme Court (about 60 percent, which is typical and even slightly lower than most), far more relevant is her reversal rate as a district court judge, where she alone was deciding a case and the appellate court, unlike the Supreme Court, was required to hear all appeals. That’s where you really see whether a judge’s decisions were correct — or at least, within the mainstream of legal interpretation.

Turns out, in district court cases, Sotomayor’s reversal rate is extraordinarily low:  of 442 rulings, Judge Sotomayor was reversed only six times by a court of appeals. That’s a reversal rate of less than 1.4 percent.

I doubt her critics will be mentioning that.