Soon after Barack Obama announced his nomination of Sonia Sotomayor to the Supreme Court, Democrats came out with a long list of talking points in support of the nominee. Among the talking points was this little gem:
Known as a moderate on the court, Sotomayor often forges consensus and agreeing with her more conservative nominees far more frequently than she disagrees with them. In cases where Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, Sotomayor and the Republican appointee(s) agreed on the outcome 95% of the time.
Sounds great, right? A whopping 95%! Not so fast says The Economist:
That sounds like quite a lot, especially if one’s view of the judiciary is shaped by a Supreme Court that routinely returns 5-4 decisions in highly controversial cases. But the large majority of appellate panel decisions are unanimous, which means you’d generally expect fairly high levels of agreement. Moreover, as Cass Sunstein’s research has shown, panel composition exerts significant influence on judicial behaviour. That is, panels with three ideologically aligned judges will tend to produce the results you’d expect, but a conservative judge who’s outnumbered on a panel will tend to vote more like a liberal, and vice-versa. The numbers in themselves don’t tell you a great deal.
More from talk-show host Bill Bennett:
The talking point portraying Sotomayor as a “moderate” is probably the most interesting of the batch. This is not the view of lawyers who practice before her, as reflected in the Almanac of the Federal Judiciary. As for the claim that she agrees with Republican-appointed colleagues in 95 percent of cases, this statistic will need to be examined against those of other judges. Unlike with the Supreme Court, litigants have an automatic right to appeal to federal courts of appeals such as the one Sotomayor sits on. Thus, unlike the Supreme Court, federal courts of appeal receive a large volume of cases as to which there is no serious controversy.
Ya gotta love the intellectual honesty of the Left.