The Brennan Center for Justice is joining the attempts to measure quantitatively the "judicial activism" of Supreme Court nominee Sonia Sotomayor, releasing a report today that describes Sotomayor as in the mainstream of judges on the U.S. Court of Appeals for the 2nd Circuit.
Multiple academic researchers have used data analysis to evaluate the rulings of Supreme Court justices or of judges on circuit courts, as The National Law Journal reported last month. Among the measures they’ve looked at are how often a judge votes to overrule precedent or to strike down laws and executive branch actions.
Monica Youn, a lawyer in the Brennan Center’s Democracy Program and a lead author of its new report, said the center wanted to build on those previous efforts and try to have an objective standard for measuring the hotly debated topic of judicial activism. The 50-page report, available here, focuses on Sotomayor’s involvement in constitutional cases as a judge on the 2nd Circuit.
“What we were trying to do was to take those measures that the academic community has agreed are measures of judicial activism and to import those into an appellate law context,” Youn said in a conference call with reporters.
Youn said the center used criteria in which a judge sought to supplant his or her judgment for that of another government official: whether a judge agreed with his or her colleagues; how often the judge upheld the action of another branch of government; and how often the judge deferred to a lower court or to an agency decision. Among the findings: that Republican appointees on the 2nd Circuit have agreed with her decisions to hold a challenged governmental action unconstitutional in nearly 90 percent of cases.
Burt Neuborne, the Brennan Center’s legal director and a law professor at New York University, said the report also indicates a surprising amount of consensus among federal appellate judges. After decades of debate over competing judicial approaches, he said most judges have settled on a process of looking at first at precedent, then the text of the Constitution and of statutes, and finally at the intended purpose of the frames and of lawmakers. “If they buy into this consensus model, there should be a relatively small deviation,” Neuborne said.
The Brennan Center, at New York University, is known for advocacy in a wide variety of generally liberal causes.
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