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Beyond Ricci

4:39 PM, Jun 16, 2009 • By JOHN MCCORMACK
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An email from a friend who takes on blogger and Supreme Court litigator Tom Goldstein's new pro-Sotomayor op-ed in the New York Times -- "Her Justice Is Blind":

Goldstein's op-ed is preposterous. In defending the Sotomayor nomination -- which Goldstein's done vehemently on his putatively nonpartisan (and usually excellent) blog, SCOTUSblog, he suggests that charges of Sotomayor's racial bias arise not from her now-infamous "wise Latina" speeches, but, rather, her Ricci (firefighters-discrimination) decision.

That characterization of the present debate is pure fantasy. Few if any people rely on Ricci alone as evidence of her bias. Instead, her critics have looked at her record as a whole, including (especially!) her speeches, where she was free to expound upon her personal beliefs, unconstrained by the precedential authorities that limit her work on the bench.

Furthermore, Goldstein persists in reiterating a factual analysis of her discrimination opinions, which he previously published on his web site. But he utterly refuses to seriously respond to the substantial criticism that he already has received with respect to his statistical study. He ignores NRO's Ed Whelan, who noted weeks ago that Golstein's data set omitted at least one of her opinions, in which she outlined theories of "equal protection" that one of her fellow judges described as "novel . . . theories that would severely impact police protection." Similarly, Goldstein responds to Professor Jonathan Adler's identification of Hayden v. Pataki (another race case) by simply shrugging that case off as merely demonstrating that Sotomayor is not "inattentive to race."

Goldstein reaches a categorical conclusion ("I've concluded that Judge Sotomayor does not allow bias to infect her decision-making") despite the fact that his own evidence, taken at face value, shows that on several occasions Sotomayor has broken with her colleagues on discrimination issues. And more obviously, Goldstein fails to at least consider that Sotomayor's decisions in racial cases are at least constrained by the Second Circuit's precedents and the Supreme Court's precedents. As a Supreme Court nominee, Sotomayor will be subject to few if any constraints. Instead, she'll have much greater freedom to indulge her personal beliefs -- which makes her speeches, affiliations, and non-judicial writings all the more relevant.

In short: Goldstein managed to write 700+ words on Sotomayor and race without even mentioning her most infamous statement on the subject, and without considering that Supreme Court justices are not bound by the rules that restrain lower-court judges. Goldstein's not dumb -- far from it. So why is he making such fundamental analytical errors?