You ask several different questions here. Let me first take the question about Sotomayor's comment that appellate courts "make policy." I don't believe this supports the view that she is a judicial activist. If you saw the entirety of her comments, you would see that her comment is correct because of the structure of our federal courts. The Supreme Court hears less than 1 percent of the several thousand cases filed each year with it. That means that, in reality, the federal appellate courts are the last word on legal questions for most of our citizens. She was saying that those courts' interpretations of laws and regulations and, in some cases, constitutional issues, become the policy in the circuits in which they sit.
Second, you have put your finger on the case most likely to provoke questions by senators on the Senate Judiciary Committee. The case is Ricci v. DeStefano, Nos. 07-1428 & 08-328. This case has already been heard by the Supreme Court and a decision is expected by the end of June. Sotomayor has not and will not be involved in deciding the Supreme Court case.
Her role in this case was at the next level down. Here is how the case came to her. In September 2006, U.S. District Court Judge Janet Arterton issued a lengthy opinion in which she dismissed the firefighters' reverse discrimination claims and found for the city of New Haven, Conn. Remember the problem here was that the city would not certify the results of promotion exams because the results showed that no black firefighters and only one Hispanic would get the promotions. The city felt something was wrong with the test and feared it would be sued by the minority firefighters if it certified the results. It wanted to find another test.
After the district court judge ruled against them, the white firefighters appealed to the 2nd Circuit. Sotomayor was one of three judges assigned to the appeal. Those three judges upheld the trial court's dismissal of the case, first in a brief summary order and then in an unsigned opinion which basically adopted the trial judge's reasoning. Here is what the opinion said:
"We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected."
The firefighters then asked the full court -- 13 judges -- to rehear the appeal, but the court voted 7-6 against them. One dissenting judge criticized the three-judge panel for not fully addressing all of the issues raised by the case.
As you can see by the 7-6 vote, this was a difficult case in which reasonable minds could differ. I expect Sotomayor will be asked why the three judges did not write a more thorough explanation of their decision. I also think the Supreme Court's decision in this case will help to frame the questions that they will ask her about affirmative action and quotas. There is no other real evidence of her views on this issue in her court opinions.
Sotomayor has never taken a position on California's Proposition 209 to the best of my knowledge. We don't know her views on a range of so-called hot button issues because those issues simply have never come before her in cases. Her court has a large number of business cases because of where it is located-New York. We'll learn more together as we read through not only her decisions, but her speeches and other writings.
There is a well-respected blog which has combed through her opinions. I recommend it to you if you'd like to learn more about her decisions. Also, the Library of Congress just created a Web site with lots of materials about Sotomayor.
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