Further to my "dueling" op-ed with Ed Fallone on the Sotomayor nomination, I thought an interesting point is raised by Ed's statement that "over the course of an 11-year career on the appellate bench, during which she participated in more than 100 cases involving race-based claims, Sotomayor voted differently from the other judges hearing the case a sum total of four times." In Ed's view, this refutes any claim of racial bias on her part.
It probably does, but racial bias - as opposed to a certain set of assumptions about the significance of race and how to respond to racial issues - is not an accusation that I would ever make in connection with Judge Sotomayor. (And, of course, Ed was not responding to my column because he hadn't seen it as I had not seen his. That's how they roll down at 4th and State.)
Where I want to extend the conversation is to consideration of the Sotomayor record in the Court of Appeals or, more specifically, how useful statistical summaries of that record are in assessing her nomination to the Supreme Court.
Contrary to the uninformed speculation of this blogger, I am familiar with Sotomayor's record and, as I said in the column (reading helps), it is conventional if "liberal." For a summary of that record by someone with a different perspective than mine who now supports the nomination, read Jeff Rosen's piece in the July 1 issue of The New Republic. The fact of the matter is that, on most issues before a circuit court of appeals, most judges and lawyers- Sonia Sotomayor and John Roberts, Rick Esenberg and Ed Fallone - would agree.
But these are not the issues that get to the Supreme Court. Very few cases result in petitions for cert (i.e., requests that the Supreme Court take a case) and only 1% of the requests are granted.
These are the cases which make the precedent that the Court of Appeals must follow and it is a judge's handling of these cases - cases in which interpretation of the law is unsettled and which often present significant questions of policy - that are relevant when she is nominated for the high Court. These are the cases that separate the liberals from the conservatives and in which "craftsmanship" is no longer the question. As to these cases, I am more interested in the Sotomayor decisions that have gone to the Court and her explanations - off the bench - of how she approaches hard cases.