Dialogues

But What Would Sotomayor Do?

Dahlia, I see the Sotomayor Doctrine you’re sketching. But is it satisfying? It seems entirely appropriate for an appeals-court judge of a restrained sort, as Sotomayor has been. But it is also unilluminating about what kind of Supreme Court justice she will prove to be. I see the strategy: She’s taking fodder away from the Republicans rather than giving them more of it. But she’s not offering a higher standard of intellectual leadership for the court. That probably signifies absolutely nothing about what she’ll do when she gets there. I do still wonder, though, whether she’s gone further down this path than she needed to.

Part of what’s bothering me is that this doctrine of applying law to facts is just incomplete. On the high bench, sometimes the justices do make new rules and new law. Applying prior rulings to a new set of facts takes them only so far, because those facts don’t precisely match the old ones—or even much match them at all. In those cases, the Constitution and the relevant statutes and the court’s previous rulings are guideposts, but not the kind with big red arrows directing you to one and only one destination. In the most confusing instances, the laws and previous rulings offer answers like the ones the Scarecrow in the Wizard of Oz gave to Dorothy when she came on him at a fork in the Yellow Brick Road and asked him which way to go. “Pardon me, this way is a very nice way,” he says. Then, pointing in the opposite direction: “It’s pleasant down that way, too.” And, finally: “Of course, some people do go both ways.” So much for clarity of direction. When you think about it, of course, this is a challenge the justices face. Otherwise, the hard cases wouldn’t come out 5-4. Ricci, the firefighters case we’re hearing so much about, is a perfect illustration. The law appeared to be one thing. Then five justices decided that it was another. And the court’s previous jurisprudence was apparently roomy enough to accommodate the shift.

Speaking of Ricci, John, you pointed out that the senators can’t use Sotomayor’s words from the opinion in that case against her. True, if only because the three-judge panel she was on wrote only one paragraph. (Would it really hurt Sotomayor to admit that this isn’t a model of appellate judging? Yes, because then she’d have to explain why, which would probably lead to questions about the internal politics of the panel, which she can’t get into. OK, back to reality.)

Click here to launch the Sotomayor Stopwatch.

Instead of writing at length themselves, Sotomayor and the two other appellate judges adopted the district court’s lengthy opinion. Sotomayor has said often this week that the lower-court ruling and the panel’s were determined by the previous precedent of her court, the Second Circuit. Law nerd that I am, I reread the district court opinion last night. I’d say that it offers guideposts that are closer to big red arrows than the Scarecrow. The most relevant case, Hayden v. County of Nassau, decided in 1999, is about a New York police department that had been sued for discrimination in the past. The department designed and gave a 25-part test for promoting police officers—but used only nine of those sections, because this offered a means for promotion that was job-related and didn’t eliminate minority candidates. The Second Circuit upheld the county’s decision in the face of a lawsuit by white cops who said they were victims of reverse discrimination because they would have been promoted if all 25 parts of the test they’d taken had been used. That does sound a good deal like the white firefighters in Ricci. They’re sitting victoriously in uniform in the hearing today because the Supreme Court made a new rule, just as Sotomayor says. And just as she’ll be called to do, at times, when she gets her own promotion.