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Sotomayor’s Judicial Restraint

June 9, 2009

The groundswell of complaints about Supreme Court nominee Sonia Sotomayor has calmed down over the last few days as she has met with upwards of a third of the Senate and curtailed her public statements. For a nominee to America’s highest court and most exclusive club, she has been keeping a low profile. The relative quiet has allowed for some more considered evaluations of her record. And, despite a recurring theme of race and gender discourse in her speeches (though, notably, not in her judicial opinions), a cold-eyed evaluation of her decisions by numerous legal experts and commentators has undermined the allegations of judicial activism and racism. In fact, according to David Brooks in today’s New York Times, Judge Sotomayor’s opinion’s reveal “restraint”. He has observed that,

Tom Goldstein of Scotusblog [a partner in one of the nation’s most prestigious law firms] conducted a much-cited study of the 96 race-related cases that have come before her. Like almost all judges, she has rejected a vast majority of the claims of racial discrimination that came to her. She dissented from her colleagues in only four of those cases. And in only one of them did she find racial discrimination where they did not. Even with what she calls her “Latina soul,” she saw almost every case pretty much as they did.
When you read her opinions, race and gender are invisible. I’m obviously not qualified to judge the legal quality of her opinions. But when you read the documents merely as examples of persuasive writing, you find that they are almost entirely impersonal and deracinated.
My Times colleague Adam Liptak has reported that Sotomayor’s opinions reflect “diligence, depth and unflashy competence.” They are, as he noted, technical, incremental and exhaustive.
To my eye, they are the products of a clear and honest if unimaginative mind. She sticks close to precedent and the details of a case. There’s no personal flavor (in the boring parts one wishes there were). There’s no evidence of a grand ideological style or even much intellectual ambition. If you had to pick a word to describe them, it would be “restraint.”
Looked at in her totality, Sotomayor seems to be a smart, careful, hard-working judicial professional, who along the way picked up a patina of 1970s race-, class- and gender-consciousness.

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