Answering Rick Santorum's Questions About Judge Sotomayor

Michael Steele isn't the only Republican without a vote sermonizing about Judge Sonia Sotomayor in today's Politico. Former Pennsylvania Sen. Rick Santorum also has a piece titled "Why I Would Oppose Sotomayor," in which he asks some misleading and easily answered questions about President Obama's pick for the Supreme Court.

"Why Does She Have Such A High Reversal Rate By The Supreme Court?"

Santorum: "Why does she have such a high reversal rate by the Supreme Court?"

The Judicial Confirmation Network's Wendy Long launched this attack on Judge Sotomayor before her nomination had been formally announced, creating a conservative talking point that has since been debunked here and here and here and here, among other places.  

In short, the claim that Sotomayor has "a high reversal rate," often pegged at 60 percent, is extremely misleading. According to the Huffington Post:

The numbers... make her appear decidedly non-controversial. In an eleven-year career, she issued 380 opinions. Five were appealed to the Supreme Court and only three were reversed. According to SCOTUSblog, a 60 percent reversal rate is actually lower than the overall Supreme Court reversal rate for the past five years. In 2008, for example, the Court reversed 75.3 percent of the cases it considered.

Nate Silver adds:

The better metric would probably be the number of decisions that the Supreme Court overturned out of all of Sotomayor's majority opinions -- whether the Court elected to review them in detail or not. According to the terrific SCOTUSBLOG, "Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases". Even if we do not count the opinions she has authored in criminal, rather than civil, cases, that means the Supreme Court's reversal rate is not 60 percent, but at most 2 percent -- 3 cases out of 150.

And Steve Benen points out:

Of course, if that 60% figure were really scandalous, the right should have balked at the Alito nomination -- he had two of his rulings considered by the high court, and both were overturned. (That's a 100% rating! He must have been a horrible judge!)

So, to answer Santorum's question, there is nothing unusual about Judge Sotomayor's reversal rate. The Supreme Court overturns most of the cases it hears and Sotomayor's record is actually better than average.

"Are there other decisions like the infamous New Haven firefighters discrimination case that would disqualify her completely?"

Santorum: "Are there other decisions like the infamous New Haven firefighters discrimination case that would disqualify her?"

Santorum is referring to Ricci v. DeStefano, in which some white firefighters were denied promotions after the city of New Haven threw out a written test on which whites scored significantly higher than minorities.  Judge Sotomayor was part of a three-judge panel that ruled against Ricci, a decision that some conservatives have used to label Sotomayor "anti-white." However, the Wonk Room explains why the ruling was perfectly within reason:

In Ricci, the city of New Haven decided not to certify the results of a firefighter's promotion test after virtually all of the minorities who took the test scored too low to be eligible for promotion. As Stanford Law Professor Richard Thompson Ford explains, however, federal civil rights law "requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that's inadvertent as well as intentional." In other words, if the New Haven test inadvertently screened out minority applicants for reasons unrelated to their fitness for promotion, the test violates the law.

New Haven's decision to toss out test results after a promotion test was administered is not unprecedented. Indeed, in the 1984 case Bushey v. New York State Civil Service Commission-decided eight years before Sotomayor became a judge-the Second Circuit considered a nearly identical case. Just like in Ricci, in Bushey white applicants significantly outperformed minority applicants on a promotion test, and the employer in Bushey responded by adjusting minority scores upward to render more non-whites eligible for promotion. The court upheld this rescoring of minority applicants, explaining that employers are allowed to "voluntarily compl[y]" with civil rights law by reconsidering tests that have an adverse impact on minorities.

Because Bushey has never been overruled, it is considered a binding precedent in the Second Circuit, and Judge Sotomayor was required to follow it when her panel was called upon to decide Ricci.

Moreover, SCOTUS Blog notes:

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.  Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times.

In other words, Judge Sotomayor rejects over 80 percent of the discrimination complaints she hears -- most of which, presumably, are not filed by white men.  The Ricci case is simply further evidence that Sotomayor bases her decisions on the law as written, no matter who her rulings affect.