Crying "Activist"

Four days before the start of Senate confirmation hearings, the Brennan Center released a report examining the judicial record of Supreme Court nominee Sonia Sotomayor, a judge whose nomination has had the dubious effect of sparking an intense debate over the correlation between ethnicity and legal activism. In the nearly two months since Obama first announced his pick, pundits from across the political spectrum have zeroed in on Sotomayor's biography -- rather than her judicial track record -- as material consideration of her fitness for Justice Souter's seat. For liberals, Sotomayor's background tends to translate into expected empathy for marginalized groups (particularly Latinos and women) and, for conservatives, into fear of the same.

But as the new Brennan Center report demonstrates, personal history is an incomplete -- if exceptionally subtle -- means of predicting judicial decisonmaking. After eleven years on the bench of the Second Circuit court (a bench shared largely with judges who do not hail from the Bronx or enjoy the taste of pigs' feet) Sotomayor has proven remarkably in line with her colleagues.

Looking at three main criteria across all of her 1,194 Second Circuit rulings -- how often she overturned governmental action, overruled lower court determinations, and disagreed with other judges on the panel -- the authors reached what they call an "unmistakable" conclusion. On paper, Sotomayor is solidly mainstream: she voted with the majority in 98.2% of constitutional cases, and reached unanimous decisions in 94% of these cases. There is little variance when civil rights, criminal justice or due process issues are involved.

Statistics aside, its hard to imagine that Judge Sotomayor's background hasn't played a role in shaping her views. Sotomayor herself has spoken eloquently (in places other than the now-infamous 2001 Berkeley speech) about her Latina background and the impact it has had on her career. And, she's said the Supreme Court is in need of a greater diversity of perspectives. The Brennan Center report and the SCOTUSBlog study suggest that Sotomayor does not subscribe to what Stanley Fish calls 'tribal' reasoning -- "[she] comes from my neighborhood and therefore I'm on [her] side."

The report suggests that crying 'activist' isn't helpful for talking about judging, nor is it a useful term for discerning the kind of Justice Sotomayor is likely to be. Burt Neuborne argues that Supreme Court Justices are constrained by considerations of text, precedent and original intent, and anybody who falls into the current definition of an activist (somebody who "makes" rather than "interprets" law) has no right to appear in front of the Judiciary Committee in the first place. However, when these considerations have been exhausted, different factors come into play: empathy and life experience, the very qualities that Obama highlighted when presenting Sotomayor as his nominee. As a judge whose judicial history places her "squarely in the mainstream" as the new report puts it, Sotomayor is not likely to come to radically different conclusions than Souter did, but her conclusions will be informed by her background and sense of compassion. With this in mind, perhaps the right questions aren't whether or not Sotomayor is an activist or if she's biased in favor of minorities, but rather, what kind of perspective she'll be bringing to the court.