Thomas Sowell Should Know the Difference Between an Amicus Brief and a Supreme Court Ruling, and He Owes Judge Sotomayor An Apology

by Judith E. Schaeffer, Vice President, and Mike Sacks, Law Clerk

[Updated below]

In a piece here in today’s National Review Online, Thomas Sowell, a prominent conservative columnist, attacks Supreme Court nominee Sonia Sotomayor for what he claims is poor performance as a judge on her part because, by his count, the Supreme Court has reversed four of six Second Circuit cases in which Judge Sotomayor took part. Never mind that the Supreme Court has not deemed it necessary to review the overwhelming majority of the thousands of cases in which Judge Sotomayor has participated, or the fact that the Supreme Court reverses rather than affirms more of the cases that it does hear, or that Samuel Alito’s score card before the Supreme Court as an appellate judge was pretty similar to Sotomayor’s when he was nominated and confirmed to the High Court.

No, the biggest whopper in Sowell’s piece is this paragraph:
Although the case of the Connecticut firefighters [Ricci] is the latest and best-known of Judge Sotomayor’s reversals by the Supreme Court, an even more revealing case was Didden v. Village of Port Chester, where the Supreme Court openly rebuked the unanimous three-judge panel that included Judge Sotomayor for “an evident denial of the most elementary forms of procedural due process.”
Too bad Sowell didn’t read our post about the Didden case here or otherwise do his homework before he put his poison pen to work, or he’d have known that the Supreme Court never heard the Didden case at all, let alone “rebuked” the Second Circuit panel that Judge Sotomayor was on.

In fact, the “rebuke” language that Sowell quotes comes not from any Supreme Court ruling, or any court ruling at all, but from an amicus brief filed by law professor Richard Epstein and others asking the Supreme Court to grant certiorari and review the Didden case, a request that the Court denied without recorded dissent. (Epstein’s brief is here; the quoted language is at the bottom of page 14.)

Ironically, in attacking Judge Sotomayor, Sowell states that “[q]ualifications are not simply a question of how long you have been doing something, but how well you have done it.” Today, Thomas Sowell did not do well at all.

Update 7/1/09 2:38pm: Earlier in the day CAC contacted National Review Online to let them know about this error. Its editors have now added a correction regarding Sowell’s piece. However, the original erroneous version was widely syndicated this morning and is still available on many sites, including here, here, and here. CAC maintains that it is Mr. Sowell’s responsibility, not ours, to identify and contact all these sites and have his mistake corrected or removed.]