Tuesday, July 14, 2009

The Lie About Judge Sotomayor's Reversal Rate

Yesterday Senator Kyl repeated the right wing talking point that Judge Sotomayor's reversal rate by the Supreme Court is a problem. Adding the Ricci case, the Supreme Court reversed 4 of the 6 cases in which she participated that the Court reviewed. Sounds bad, eh? But like much of the slime thrown her way this, too, is not what it seems.

The truth is that most cases decided by the Court of Appeals don't get to the Supreme Court because the court hears only a select few. And of those cases that get there, about 75% are reversed. The Court picks cases when the Courts of Appeals have not agreed. The Court's decision resolves these conflicts and sets precedent for the Courts of Appeals to follow. By this measure, then her reversal rate she's doing better than the average judge. Even if there were some merit to her "alarming" reversal rate, her record shines when compared to Justice Alito's 100% reversal rate when he was nominated by President Bush.

Here is a snapshot of her judicial record: she heard over 3000 cases on the Court of Appeals. She wrote 380 opinions. 5 (6 counting Ricci) were heard by the Supreme Court. 3 (4 counting Ricci) were reversed. So her reversal rate is either 66% (4 out of 6), still less than the average or less than 1% (4 out of 380). And if we only count civil cases, her reversal rate is 4 out of 150.

To use a baseball metaphor (like the Senators), would you refer to Ty Cobb's .366 lifetime batting average- an astounding achievment - by saying that he made an out 64% of the time. A batting average only has meaning in reference to the standard that others have achieved. Thus, most players NEVER hit over .300 so when a player does, it is recognized as exemplary. Similarly, a 60% reversal rate means nothing unless it is put into the context of overall reversal rates.

In his usual thorough way, Nate Silver shows us how to make sense out of these numbers. And for a thorough analysis of her opinions, see the SCOTUS blog.

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