Bench Memos

Sotomayor vs. Cabranes

This New York Times article on the relationship between José Cabranes and his former protégé Sonia Sotomayor has some interesting observations, including this one related to the rise of racial preferences:

 

Judge Cabranes, now 68, rose through the Ivy League as a lone Hispanic in an era before widespread desegregation, student protests or affirmative action, and he carried himself as a courtly aristocrat. Judge Sotomayor, now 54, came of age in the heat of the desegregation battles, bristled at any insinuation that being a beneficiary of affirmative action tempered her qualifications and organized the growing ranks of Hispanic students to argue for more hiring and admissions.

“It is generational,” said Cesar A. Perales, the president of LatinoJustice P.R.L.D.E.F. and a friend of both. “She grew up in a time in which there was such foment within minority communities to establish their rights, right in the middle of all that, a product of the ’60s,” Mr. Perales said. “José came up before all that. He never would have been seen as a victim of discrimination.”

 

But the article oddly, and without citing any examples or other meaningful evidence, repeatedly contrasts Cabranes’s and Sotomayor’s supposed judicial styles in a manner that denigrates Cabranes and favors Sotomayor:

 

Where Judge Cabranes is broadly expansive in his opinions, Judge Sotomayor is studiously narrow — tailored to the facts of each dispute, avoiding grandiose pronouncements,” as her friend Judge Miriam Goldman Cedarbaum put it.…

 

[Cabranes] has acquired a reputation as an expansive and scholarly jurist….

 

In a sharp contrast to Judge Cabranes’s more expansive style, she and Judge Sotomayor found they agreed on a more cautious, scrupulously narrow, just-the-facts approach to judicial work, disdaining what they called “results-oriented judges” — meaning judges, including conservatives, who used elaborate ideas about democracy or constitutional interpretation to reach the ends they happened to favor.

Their shared approach is in part defensive, Judge Cedarbaum explained, to protect against future embarrassment. “When you make grandiose pronouncements on facts that are not before you, you might regret it when another set of facts comes up,” she said. “We don’t write philosophical treatises. We decide cases.”

The article even paraphrases fellow Second Circuit judge Guido Calabresi defending the “terse ruling” that Sotomayor joined in the New Haven firefighters case as “show[ing] a cautious reluctance to open the new and thorny questions Judge Cabranes wanted to take on.”  But Cabranes’s objection to the ruling was that it utterly failed to address the important issues that he believed that the case actually presented—a belief that at least four Supreme Court justices evidently shared, as the Court’s grant of review in the case indicates.  Calabresi confers the badly confused (see point 3 here) label of praise of “[j]udicial minimalism” on the panel ruling, but a failure to deal adequately, or even intelligibly, with a party’s claims hardly deserves praise.