In what may be the most unusual hit on Judge Sotomayor to date, the Washington Post has a long article today attacking Sotomayor because her opinions are too detailed:
During nearly 11 years on the federal appeals court in New York, Sotomayor has made herself an expert on subjects ranging from the intricacies of automobile mechanisms to the homicide risks posed by the city’s population density. Her writings have often offered a granular analysis of every piece of evidence in criminal trials, and sometimes read as if she were retrying cases from her chambers.
Legal experts said Sotomayor’s rulings fall within the mainstream of those by Democratic-appointed judges. But some were critical of her style, saying it comes close to overstepping the traditional role of appellate judges, who give considerable deference to the judges and juries that observe testimony and are considered the primary finders of fact.
The Post‘s hit on Sotomayor is ironic in light of the fact that conservatives have spent the last several weeks claiming that Sotomayor’s decisions aren’t detailed enough, but it nevertheless lacks merit. Of course, Sotomayor should be praised, not attacked, for writing detailed and well thought out opinions; but the Post also reaches its conclusion by looking at a skewed sample of her decisions that includes the cases where a judge is most likely to be particularly detailed in drafting an opinion.
For starters, the Post only reviewed Sotomayor’s decisions in cases where at least one other judge disagreed with her and wrote a separate opinion. But such cases are a terrible measure of how detailed a judge’s writing usually is. When a judge is forced to defend their decision against a dissenting colleague, they virtually always flesh out their opinion considerably to rebut any claims made by the dissent.
The Post also cites a handful of cases where Sotomayor reversed a trial court because she disagreed with its findings of facts. Although the Post is correct that appeals judges must give “considerable deference” to a trial judge’s fact finding, “considerable” does not mean “absolute.” Rather, an appeals court is supposed to reject a trial court’s factual findings when they are “clearly erroneous.” Moreover, it is exactly because of this high degree of deference accorded to a trial judge’s findings that appeals court decisions rejecting a trial court’s fact finding are often very long and detailed. Because an appeals court must have a very good reason to reverse a trial court’s factfindings, a sensible appeals judge will go into great detail whenever they do so in order to explain why they are taking this unusual step.
Interestingly, the Post‘s piece quotes a former law clerk to ultra-conservative Justice Clarence Thomas, who explains that Sotomayor’s opinions are “extraordinarily thorough, and a judge would ordinarily be praised for writing thorough opinions.” Perhaps the Post should have listened to this former clerk’s advice before it published an absurd attack piece slamming Judge Sotomayor for being too good at her job.