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'Not that Smart': Sonia Sotomayor and the Construction of Merit

Emory Law Journal, 61(4), 2012

54 Pages Posted: 10 Aug 2011 Last revised: 27 May 2017

Guy-Uriel E. Charles

Duke University School of Law; Duke Law School

Daniel L. Chen

Toulouse School of Economics / Institute for Advanced Study / University of Toulouse; LWP, Harvard Law School, Harvard University

G. Mitu Gulati

Duke University School of Law

Date Written: August 17, 2011

Abstract

The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply “not that smart”. For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative justices like Antonin Scalia, Samuel Alito and John Roberts. Using a set of basic measures of judicial merit, such as publication and citation rates for the years 2004-06, when Sotomayor was on the Second Circuit Court of Appeals, we compare her performance to that of her colleagues on the federal appeals courts. Sotomayor matches up well. She might turn out to be more of a force on the Court than the naysayers predicted.

Keywords: Supreme Court, judges, judicial performance, empirical scholarship

Suggested Citation

Charles, Guy-Uriel E. and Chen, Daniel L. and Gulati, G. Mitu, 'Not that Smart': Sonia Sotomayor and the Construction of Merit (August 17, 2011). Emory Law Journal, 61(4), 2012. Available at SSRN: https://ssrn.com/abstract=1907724 or http://dx.doi.org/10.2139/ssrn.1907724

Guy-Uriel Charles

Duke Law School ( email )

Science Drive & Towerview Rd
Durham, NC 55455
United States

Duke University School of Law ( email )

Box 90360
Science Drive & Towerview Rd.
Durham, NC 27708
United States

Daniel L. Chen

Toulouse School of Economics / Institute for Advanced Study / University of Toulouse ( email )

21 allée de Brienne
31015 Toulouse cedex 6 France
Toulouse, 31015
France

LWP, Harvard Law School, Harvard University ( email )

8 Mt. Auburn St., 1st Floor
Cambridge, MA 02138
United States

Gaurang Mitu Gulati (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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