Study: Sotomayor doesn't favor discrimination plaintiffs

McClatchy NewspapersJune 4, 2009 

WASHINGTON — Supreme Court nominee Sonia Sotomayor keeps confronting questions about whether she tilts her judicial rulings to fit her background, but a new study suggests that she doesn't.

A former prosecutor, Sotomayor sided with racial-discrimination complaints only 10 times out of the 96 complaints she considered as an appellate judge, the Scotusblog.com study found.

Yet as the high court's first Hispanic nominee continued to visit members of Congress on Thursday, her allies were still playing defense over a newly revived Sotomayor quote from 1994, which seems to buttress an already incendiary 2001 comment.

"She's going to rely on her life experiences to help write opinions. That's who she is," Senate Majority Leader Harry Reid, D-Nev., said Thursday. "Her life story is part of her opinions."

Reid and Latino leaders wore big lapel buttons that said "Sonia," with a circle of stars surrounding the name. Liz Lopez, the Hispanic National Bar Association vice president for external affairs, called Sotomayor "an extraordinarily well-qualified candidate," and Raul Yzaguirre, the founder of National Council of La Raza, said Sotomayor's heritage was a help.

"She will be sensitive to civil rights," Yzaguirre said. "She's a strict constructionist, but she also has the sensitivity of someone with her background."

Brent Wilkes, the executive director of the League of United Latin American Citizens, added, however, that "there's very little evidence she's used her position to dramatically advance a civil rights agenda." His was a cautionary note, considering the questions some have raised about Sotomayor's judgment.

In 1994, Sotomayor told an audience that "I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion" than a male judge. She specified that this meant a "more compassionate and caring conclusion."

In 2001, Sotomayor told an audience in Berkeley, Calif., her "hope" that a "wise Latina with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

More generally, Sotomayor focused in that speech on the relationship between background and judging.

"Personal experiences affect the facts that judges choose to see," Sotomayor said. "I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage."

President Barack Obama already has tried to extricate Sotomayor from the thicket, saying that her word choice in that instance was poor. In her coming Senate confirmation hearing, Sotomayor almost certainly will back away from claims that gender and race can lead to a "better" or "wiser" decision.

The evidence is equivocal over whether gender and race can lead to different decisions, however.

A 2005 Yale Law Journal study of 556 federal appellate decisions, for instance, found that female judges were "significantly more likely than male judges" to side with the plaintiffs in sexual harassment and discrimination cases. Female judges sided with plaintiffs 39 percent of the time, while male judges did so 24 percent of the time, author Jennifer Peresie found.

Other studies of gender and judging have produced "conflicting results," Peresie cautioned.

Sotomayor's own work during 11 years on the New York-based 2nd U.S. Circuit Court of Appeals has put her on both sides of discrimination cases. In her most well-known decision, rejecting a reverse discrimination lawsuit filed by Frank Ricci and other white New Haven, Conn., firefighters, five other 2nd Circuit members ultimately joined Sotomayor.

Overall, Sotomayor was part of a unanimous panel in nine of the 10 decisions she's joined supporting racial discrimination claims, Scotusblog.com author Tom Goldstein, found in a comprehensive study. Usually, though, discrimination claims failed.

Several years ago, for instance, an African-American employee named Matricia Moore claimed that New York-based Consolidated Edison was retaliating against her with bad job evaluations, among other steps.

"(Allegedly), her white male supervisor spoke to her about sexual fantasies involving (Moore) and told her on one occasion that 'back in the old days you would be having my baby,' " Sotomayor wrote in a 2005 opinion.

Nonetheless, Sotomayor led two other judges in rejecting Moore's request for an injunction, concluding that "there was no evidence to support her allegation that she was being intimidated."

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