Rosen Writes on Race and Sotomayor

Jeffrey Rosen's first analysis of Supreme Court nominee Sonia Sotomayor sparked very heated responses. I described his article as a "hatchet job," and many other bloggers and media joined the fray. Rosen subsequently distanced himself from the original essay.

Now, Rosen has shifted gears -- mirroring a evolving approach by Republicans who oppose Sotomayor. Rosen's latest work on Sotomayor analyzes her views on "race" and "gender," rather than her purported intellectual shortcomings and temperament. In a Time article, "Where Sonia Sotomayor Really Stands on Race," Rosen primarily examines matters that have already received a tremendous amount of airplay. For example, he discusses the Second Circuit ruling in Ricci v. DeStefano, a speech Sotomayor delivered at the University of California at Berkeley, and a SCOTUS blog analysis of the numerous race cases Sotomayor has decided. Based on this review, Rosen concludes that:

An examination of Sotomayor's career supports the idea that on the bench, she has been a racial moderate, not a radical. At the same time, her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed. And for that reason, if confirmed, she could influence the racially charged issues the Supreme Court will confront over the next few decades in unexpected ways.

I agree with this conclusion. Nothing in the cases Sotomayor has decided or the speeches she has delivered suggests that she is a radical on issues of race. Instead, Sotomayor exhibits nuance -- a claim I made weeks ago after reviewing the entirety of her Berkeley talk. Accordingly, I am glad to see Rosen approach the issue with the complexity that Sotomayor (and the public) deserves.

One-Sided Analysis of O'Connor and Ginsburg Position on Gender
Despite my general approval of his new article, there are a few moments where Rosen's analysis lacks depth. For example, Rosen, like many other commentators, cites quotations by Justice Ginsburg and Justice O'Connor which suggest that these two women view gender as irrelevant to judging and to law. Rosen's use of these comments, however, distorts the complexity of Ginsburg's and Sotomayor's views on the subject of identity and judging.

As I have argued several times on this blog, Ginsburg and O'Connor have made statements in judicial opinions that contradict the "gender neutral" quotations that Sotomayor's detractors frequently cite. For example, in J.E.B. v. Alabama, Justice O'Connor agreed that prosecutors could not use peremptory challenges to exclude potential jurors based on sex. O'Connor, however, wrote separately to emphasize that gender remains relevant in law:

We know that like race, gender matters. . . . [O]ne need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case. . . .Individuals are not expected to ignore as jurors what they know as men--or women. . . .

[T]o say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said [the same thing about race]. . . .Though we gain much from this [ruling], we cannot ignore what we lose. [W]e have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes.

O'Connor also urged the Court not to extend J.E.B. to private lawyers because she wanted them to have the opportunity to maximize the number of women on juries for cases raising issues such as sexual harassment.

Furthermore, in Grutter v. Bollinger, O'Connor wrote the lead opinion which held that the University of Michigan law school had a compelling reason for wanting racial diversity: enhancing "viewpoint" diversity and the robust exchange of ideas in the classroom. O'Connor's opinions in J.E.B. and Grutter discredit the idea that she does not believe that race and sex matter. Rosen and others who continue to hold O'Connor (and Ginsburg) out as women who discount gender's relevance have failed to interrogate arguments that undermine their simplistic portrayals (on Ginsburg, see: Sotomayor's Opponents Apply Racial and Gendered Double-Standard).

Analysis of Death Penalty and Race
Rosen also contends that Sotomayor's position on race and the death penalty could impact future caselaw. Apparently, Sotomayor linked the death penalty with racism while she was a prosecutor for the State of New York. Rosen asserts that: "The court rejected that claim in 1987, but Sotomayor might be sympathetic to it." This statement, however, simplifies the Court's highly criticized 1987 ruling in McCleskey v. Kemp (which I have discussed on this blog). In McCleskey, a closely divided (5-4) Court rejected the petitioner's argument that Georgia applied the death penalty in a racially discriminatory fashion. Even if the "sophisticated" statistical analysis McCleskey introduced into evidence proved a racial correlation, he did not show in his own case that race mattered, nor could he demonstrate that Georgia maintained the death penalty because it wanted the racial patterns to occur.

Four justices, however, dissented from the majority opinion. Also, after he retired, Justice Powell, who wrote the majority ruling, listed McCleskey as a decision he "regretted." If Powell had changed his mind earlier, a majority of the Court would have concluded that racism impacted application of the Georgia death penalty.

Rosen should also consider the position of Justice Scalia, who voted with the majority in McCleskey. Although he sided with Georgia, Scalia wrote a memorandum to the other justices prior to the ruling in which he conceded that jurors and prosecutors operate on arbitrary biases like race. Scalia, however, says that this fact is "ineradicable," and he votes to reject McCleskey's claim -- despite his own statement that he needs no additional "proof" regarding the operation of race among jurors and prosecutors. If Scalia had voted in a manner that followed the logic of his memorandum and if Powell had changed his mind earlier, then a 6-3 majority would have agreed with Sotomayor. Brennan and Marshall, who dissented, opposed the death penalty altogether.

Sotomayor's feelings about the death penalty are not extraordinary, relative to the views of other justices. Much of the analysis of Sotomayor, however, decontextualizes her comments by failing to consider the breadth of her work and by failing to consider strikingly similar commentary by other judges.

Finally, the weight of academic literature, government studies, and even Supreme Court rulings on the death penalty supports Sotomayor's conclusion. In 1990, the General Accounting Office conducted an extensive analysis of existing studies on the death penalty. After eliminating unreliable studies and controlling for nonracial factors, the GAO found a pervasive pattern of race-based application of the death penalty -- particularly in the instance of a white victim. This bias sends more whites than blacks to the death chambers (because most murders are intraracial), but it legitimizes Sotomayor's view of the death penalty. The most racist aspect of the death penalty is the lack of empathy for black murder victims. McCleskey's study showed the same pattern.

Between 1930 and the early 1970s, almost 90 percent of the individuals executed for rape were black men, and all of the victims were white. This number is unexplainable on grounds other than race, particularly given the intraracial nature of rape. The Supreme Court invalidated the death penalty for rape in 1977, on the grounds that it was a disproportionate punishment for a crime that fell short of murder. Nevertheless, in other cases, members of the Court have cited to the race and rape statistics in order to contest the lawfulness of the death penalty.

Although Rosen's latest effort on Sotomayor improves upon his initial analysis, he fails to offer sufficient context in some places. Alas, he is certainly not alone on this issue.