Eric, Goldstein’s analysis, as Ed Whelan points out, omits en banc decisions — including two whoppers. In Hayden v. Pataki, Sotomayor took the unusual position that the equal protection clause barred states from disenfranchising felons. Yes, really. In Brown v. City of Oneonta, she took the position that it was an equal protection violation for police to focus on African America male suspects after a woman was attacked by an African American male and provided a description to the police. Really.
I would also caution against these superficial statistical studies. They show nothing about the issues that were at stake, the facts, and the degree of ambiguity in existing law in these specific cases. More important, if there are two or three instances in which Sotomayor attempted to propagate odd new law — all which tend toward radical new theories of equal protection jurisdprudence — isn’t that sufficient reason for concern even though she has a dozen run of the mill dismissals of ordinary Title VII claims? She would, after all, have the chance to do this all the time if confirmed. And if that is combined with a jaw-dropping speech shedding doubt on the role of impartiality in judging and suggesting there is some “Latina” brand of jurisprudence?
In this case it is not the media which has created an issue. It is Sotomayor’s own words and opinions which deserve a full review.