The Progressive


A project of Common Dreams

For Immediate Release

Jeanine Plant-Chirlin, 212-998-6289
Susan Lehman, 212-998-6318

Sotomayor Not an Activist Judge, Study Finds

New study of 1,194 constitutional cases shows that Judge Sotomayor is squarely in the mainstream


A new comparative study
of 1,194 constitutional cases shows that Judge Sonia Sotomayor is
neither an "activist" judge nor an "outlier" jurist among her peers on
the Second Circuit. In the run-up to next week's Senate Judiciary
Committee confirmation hearings, the unprecedented depth of this
analysis provides hard data to counter the rhetoric of "judicial
activism" that has plagued her nomination since May.

The Brennan Center for
Justice at NYU School of Law looked at each of the constitutional cases
decided by the Second Circuit during Sotomayor's decade-long service,
analyzed her decisions and compared them to those of her peers.

Click here to dowload the report.

Measuring judicial
activism and deference, the report considers whether a judge's vote was
in accordance with his or her colleagues; whether it upheld or
overturned a governmental action; and whether it affirmed or reversed
the lower court.

"In this confirmation
process, we hear a lot about 'judicial activism.' But we hear too much
rhetoric. We decided to look at the facts," says Monica Youn, primary
author of the report and attorney in the Brennan Center's Democracy
Program. "When we compared Judge Sotomayor's record against those of
her peers, we found that Judge Sotomayor is squarely within the
mainstream of the Second Circuit."

The report also examines
whether Judge Sotomayor's decision making and that of her colleagues
varied in specific cases -- involving, for example, civil rights or
criminal law -- and also whether it mattered if a judge had been
appointed by a Republican or Democratic President.

Among the findings:

1. 94% of Judge Sotomayor's constitutional decisions have been unanimous.

2. She has voted with the majority in 98.2% of constitutional cases.

3. Even when she voted to hold a governmental action unconstitutional, the Republican- appointed judges on the Second Circuit voted with Judge Sotomayor in nearly 90% of cases.

4. She overruled lower court and agency decisions at a rate that closely conforms to the circuit overall average.

5. In the
cases in which she voted to overrule a district court or agency, a
Republican-appointed judge voted with her over 94% of the time.

"When the predictable
rhetoric about 'activism' began, the Center decided to weigh in on her
nomination and this report offers a unique contribution to the debate,"
says Susan Liss, director of the Democracy Program at the Brennan
Center. "We were struck by the degree of unanimity and consensus on a
court with nearly equal numbers of Republican and Democratic
appointees, and Judge Sotomayor has agreed with her colleagues more
than most."

"Reflections on Judge
Sotomayor's nomination to the Supreme Court carry particular emotional
resonance for the Brennan Center because it is Justice Brennan's seat
that is to be filled," says Burt Neuborne, Inez Milholland Professor of
Civil Liberties at NYU School of Law and contributor to the report.
"This report will help ground and shape the discussion surrounding the
Senate confirmation hearings."

For more information or
to set up an interview with Monica Youn, Burt Neuborne, or Susan Liss,
please contact Jeanine Plant-Chirlin at 212-998-6289 or or Susan Lehman at 212-998-6318 or

The Brennan Center for Justice is a nonpartisan law and policy institute. We strive to uphold the values of democracy. We stand for equal justice and the rule of law. We work to craft and advance reforms that will make American democracy work, for all.

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