May 27, 2009

Viewing Judge Sotamayor Through Her Election Law Decisions: Careful, Thoughtful, Mainstream Leaning Left

Armed with a list of Judge Sotamayor's opinions and judicial votes in the election law field helpfully compiled by Bryan Sells, I set out to see what I could learn about the judge. Though I had read some of the opinions on the list in the past, I had not focused on the author of those opinions, nor did I consider these opinions as a body of work.

I went into this analysis with low expectations, hearing questions about the judge's intellect (questioning her ability to be an "intellectual counterweight to the conservative justices,"), her writing style ("not always a pleasure to read"), and even her ability to write in English ("the absence of soaring rhetoric"). Though the body of work is relatively small, I came away impressed with the judge's intellect, reasoning, and writing ability. I also found her jurisprudence to be on the mainstream left, no different from the kind of opinions I would expect from Justices Breyer, Ginsburg, or Souter. Finally, despite questions about her temperament, at least in writing she comes across as a judge who is respectful of litigants and careful about her judicial role (I cannot comment on how she might come across at oral argument). Whether or not these election law opinions are representative of Judge Sotomayor's appellate opinions generally I cannot say. Below, I give a few more details, drawing on the cases cited in the list.

Judge Sotomayor's Political Valence. The Second Circuit has considered two heated election law disputes in recent years, both being considered for en banc consideration by all the judges on the circuit. The first set of cases involved whether felon disenfranchisement laws could be found to violate section 2 of the Voting Rights Act, given the great effect of such laws on minority communities. The second question concerned the constitutionality of Vermont's campaign finance spending limits. In both cases, Judge Sotomayor was on the "left" side of the issue. She took the position that felon disenfranchisement laws could violate section 2, based upon her reading of the plain text of the statute. (In that regard, she was joined by other mainstream judges, including Judge Calabresi.) In the campaign finance case, she voted with a majority of other judges opposing en banc reconsideration of the case. That vote would have allowed Vermont's spending limits to go into effect temporarily, pending additional hearings before a federal district court. (The U.S. Supreme Court eventually reversed in this case, Randall v. Sorrell.) Her vote was a procedural one, not on the merits of the spending law. She considered the appropriate standard for en banc review in the Second Circuit. But the effect of her vote was to allow a strict campaign finance regulation to remain in place, albeit temporarily.

In other cases, too, Judge Sotomayor has leaned left on election law issues, but not hard left. She allowed a pro se litigant to push his case for the right to be a write-in candidate in an election, though she ultimately rejected his claims applying existing precedent. A judge with more radical views would have allowed that case to go further She upheld a law barring court fiduciaries from holding leadership positions in political party organizations, consistent with the longstanding constitutionality of the Hatch Act. She upheld a law denying small minor parties official party status on the ballot, and one barring the payment of paid petition circulators by the signature (a ruling consistent with at least two other circuits and in conflict with at least one other).

Perhaps the greatest outlier is the Lopez Torres case. She voted with two other judges on a unanimous panel to strike down New York's method of choosing certain judges, an opinion the Supreme Court unanimously reversed (Lopez-Torres v. New York State Board of Elections). But in another case involving judicial elections, she was less disturbed by the unfairness of the process and rejected a losing candidate's constitutional claims.

As a whole, I think that virtually every position she had taken in these cases (besides Lopez Torres) would get the votes of the more liberal members of the current Supreme Court, and some of the positions would get the votes of some of the more conservative members as well. Her opinions show great care, recognizing when precedent is clear and when it is not.

Judicial role and modesty. It is notable that in the felon disenfranchisement case, Judge Sotomayor relied upon clear statutory text (often a position of more conservative judges) and deference to the clear words of Congress. In the write-in candidate case, the judge bent over backwards to make sure that a pro se litigant's claims were not knocked out of court simply because the litigant drafting the pleadings himself. She helped recast the claims in a clear way. But she didn't show too much sympathy when it came to the merits. After she helped get pro bono counsel for the litigant, she considered and then rejected his claims. (In the same set of cases, she also brought to counsel's attention the role she had played on the NYC Campaign Finance Board before she took the bench, and considered--apparently without being prompted--whether that should cause her recusal in the case. She concluded: "I see no reason to recuse myself from this motion, but I invite the parties to inform me of any facts that might warrant reconsideration of this decision.")

Writing Style It is true that Judge Sotomayor doesn't write with the same flair (and snark) of Justice Scalia, or Judges Calabresi, Posner or Kozinski, but most judges don't. But neither does she write like Judge Souter, whose opinions won't make it into any book on exemplary judicial writing. Her writing is clear and straightforward. She doesn't hide the ball. She focuses on the right things. If you told me that English was not her first language, I would not believe you.

Posted by Rick Hasen at May 27, 2009 10:05 PM