Pat Buchanan claimed that Sonia Sotomayor has a “long record” of “basically believing that it's OK to discriminate against white males as long as you're advancing people of color who have been held back in her judgment.” But the New York Times article Buchanan cited as evidence does not support Buchanan's claim.
On the June 2 edition of Hardball, MSNBC political analyst Pat Buchanan, who has previously asserted Supreme Court nominee Sonia Sotomayor is an "affirmative action pick" who "practices race-based justice," "believe[s] in reverse discrimination against white males," and is "an anti-white, liberal judicial activist," purported to “lay out the record of Judge Sotomayor, especially on the issue of race-based justice, her long record, as reported in The New York Times, all the way back to Princeton and Yale, basically believing that it's OK to discriminate against white males as long as you're advancing people of color who have been held back in her judgment.” In fact, the May 29 Times article Buchanan was apparently referencing did not in any way report or establish that Sotomayor's record supports the conclusion that she “believe[s] that it's OK to discriminate against white males.”
Moreover, as Media Matters for America has previously noted, Supreme Court litigator Tom Goldstein wrote in a May 29 SCOTUSblog post that after reviewing 96 race-related cases she decided on the court of appeals, “it seems absurd to say that Judge Sotomayor allows race to infect her decision making.”
I've now completed the study of every one of Judge Sotomayor's race-related cases that I mention in the post below. I'll write more in the morning about particular cases, but here is what the data shows in sum:
Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.
Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent's point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.
In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.
During the Hardball segment, Buchanan went on to cite Sotomayor's reaction when she was a law student -- as reported by the May 29 Times article -- to Regents of the University of California v. Bakke as evidence of her “long record” of “believing that it's OK to discriminate against white males,” stating: “For example, the Allan Bakke case, 1978. White medical school guy got higher grades than almost every single minority, kept out because of his race. She was apoplectic, or alarmed, it was said, when that court decision came down throwing out the quotas.” (The Times reported that Sotomayor “shared the alarm” of others in a group of Latin, Asian, and Native American students at Yale Law School at the decision -- not that she was “apoplectic.”) However, Sotomayor's reported “alarm” was not out of mainstream legal opinion at the time, given that four justices dissented from the court's ruling that the University of California at Davis' medical school admission program violated the Constitution. Additionally, on the June 3 edition of MSNBC Live, ThinkProgress.org legal research analyst Ian Millhiser responded to Buchanan's repeated invocation of Sotomayor's reaction as a law student, saying: “I don't think that Bakke much matters. This came along well before Judge Sotomayor became a judge, and when you look at her record, you see that this is a judge who understands that she has to follow the law regardless of what is popular.”
From the June 2 edition of MSNBC's Hardball with Chris Matthews:
CHRIS MATTHEWS (host): We're back in time for the “Politics Fix” with MSNBC political analysts Pat Buchanan and Lawrence O'Donnell. Pat, I was somewhat unsatisfied with our earlier guests at the beginning of this show, because I think people on the right want a real bruising battle over this Sotomayor nomination. They don't want it to go smoothly. They want a lot of friction and a lot of heat. What do you think?
BUCHANAN: I don't know if it's friction or heat. They certainly do want a long battle, Chris, I think, and to lay out the record of Judge Sotomayor, especially on the issue of race-based justice, her long record, as reported in The New York Times, all the way back to Princeton and Yale, basically believing that it's OK to discriminate against white males as long as you're advancing people of color who have been held back in her judgment.
For example, the Allan Bakke case, 1978. White medical school guy got higher grades than almost every single minority, kept out because of his race. She was apoplectic, or alarmed, it was said, when that court decision came down throwing out the quotas.
Chris, we've got have to have this out. I agree with [Sen.] John Cornyn [R-TX]. This ought to be laid on the table, but it ought to be laid out case by case -- what do you believe? Is this what we want on the court? Stop the name-calling.
MATTHEWS: OK, let me ask you, Lawrence: Do you think that she will lose if the issue becomes the Ricky case up in -- Ricci case, rather, up in New Haven, where the firefighters -- the white firefighters did well on the test, had the test thrown out because no African-American did well in it. Do you think that's a good issue for Democrats or a bad one?
O'DONNELL: Well, there's no way she's going to lose on the basis of that case. She was following settled law. Remember, it was the city of New Haven. She was finding for the city of New Haven. Meaning, she was finding in favor of a local government making its own local governing decision, which is something that Pat and his side of the world always championed until it became convenient to yell about this particular case. And so --
MATTHEWS: But what about they raised the principle? Suppose the guys who don't like her on the committee say, what about the principle? Should law be used to offset the advantages of whites, even if it's about results, not process?
O'DONNELL: Look, if the Supreme Court confirmation vote is simply on the basis of affirmative action, she's going to win, and she's going to win with 60 votes or more. So affirmative action is not a controversial thing. Rush Limbaugh and Pat think it is. There are still some old white men out there who think affirmative action is an extremely contentious thing in this country when, in fact, it isn't.
BUCHANAN: Hey, Chris -- Chris, racial --
MATTHEWS: Pat, have you got a nail in -- have you nailed her yet, Pat? Have you found something on her that you think will keep her number down below 70?
BUCHANAN: Yeah, I think she'll -- I have to find it hard to believe any Republican is going to vote for her. But let me say this --
MATTHEWS: Any Republican? There's 40 of them.
BUCHANAN: I find it hard to see a Republican who will vote for her who will ever be considered for national office, I should say. Listen, race preferences were rejected overwhelming majorities in the state of California, in the state Michigan, in the state of Washington, as well as Nebraska. I think here's a case, Chris -- she tried to overturn a law in New York state which prohibits felons from being allowed to vote who are in the penitentiary. She said because there are so many Hispanics, so many African-Americans in the penitentiary, this law has a disparate impact on minorities, and therefore, under the Voting Rights Act of Congress, they have to be given the right to vote.
This is insanity, and that's what this woman believes in. It's her whole career. Read David Kilpatrick in the New York Post Saturday. It's laid out.
O'DONNELL: Pat, why did she --
MATTHEWS: Lawrence, I thought denial of voting rights to felons was common law. I thought that was a common law practice going back many hundreds of years.
O'DONNELL: Why did she -- why did she find against the black worker in a hospital in Long Island who thought she was discriminated against? She found against the black plaintiff in that case. So, Pat, there's -- she's got thousands of cases here. You can harp all day long about your horrors in the face of affirmative action, and all the discrimination you and your family have suffered over the years from the time you were slaveholders here.