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PrintMay 27, 2009
Sotomayor overturned 60% of the time by Supremes
If senators vote on Sonia Sotomayor's track record, they might want to look at the 60% reversal rate when her decisions reach the Supreme Court.
Writing at The New Republic, Jeffrey Rosen offers a reason:
Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.
Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)
The Ricci case is likely to increase that percentage of reversals as most court watchers expect the Supreme Court to right the terrible wrong Sotomayor did the firefighters. The case is just one more indication that Sotomayor is not fit to sit on the court where many of her opinions have been tossed aside.
Stephen Dinan, writing in the Washington Times , thinks that the reversal rate may be a potent line of attack for the opposition:
With Judge Sonia Sotomayor already facing questions over her 60 percent reversal rate, the Supreme Court could dump another problem into her lap next month if, as many legal analysts predict, the court overturns one of her rulings upholding a race-based employment decision.
Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.
"Her high reversal rate alone should be enough for us to pause and take a good look at her record. Frankly, it is the Senates duty to do so," said Wendy Wright, president of Concerned Women for America.
There is no chance Obama will withdraw her name (unless some personal trouble emerges) nor is it likely that she will be defeated on the floor of the senate.
But the American people should be shown just what our president thinks of the Supreme Court to nominate such a candidate to sit in judgment on our most vital cases involving our principles and rights.
