The Case Against Sotomayor

[Lunar]

A judge on the U.S. Court of Appeals for the Second Circuit, Sonia Sotomayor's biography is so compelling that many view her as the presumptive front-runner for Obama's first Supreme Court appointment. She grew up in the South Bronx, the daughter of Puerto Rican parents. Her father, a manual laborer who never attended high school, died a year after she was diagnosed with diabetes at the age of eight. She was raised by her mother, a nurse, and went to Princeton and then Yale Law School. She worked as a New York assistant district attorney and commercial litigator before Senator Daniel Patrick Moynihan recommended her as a district court nominee to the first President Bush. She would be the first Hispanic Supreme Court justice, if you don't count Benjamin Cardozo. (She went to Catholic schools and would also be the sixth Catholic justice on the current Supreme Court if she is, in fact, Catholic, which isn't clear from her official biography.) And she has powerful supporters: Last month, the two senators from New York wrote to President Obama in a burst of demographic enthusiasm, urging him to appoint Sotomayor or Ken Salazar.

Sotomayor's former clerks sing her praises as a demanding but thoughtful boss whose personal experiences have given her a commitment to legal fairness. "She is a rule-bound pragmatist--very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background," says one former clerk. "She grew up in a situation of disadvantage, and was able, by virtue of the system operating in such a fair way, to accomplish what she did. I think she sees the law as an instrument that can accomplish the same thing for other people, a system that, if administered fairly, can give everyone the fair break they deserve, regardless of who they are."

Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family--working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier of a Harry Potter movie.

But despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for examples, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)

But despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for examples, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)

http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085

[Lunar]

I disagree to an extent on a number of points.

1.  A symbolic pick isn't necessarily limited to tokenism.  Picking an intellectual heavyweight, or the possible opposite of one, are also symbolic of his presidency.  Picking someone that might not look like an esteemed justice will reflect poorly on Obama, if if the nominee has a vagina and grew up in the Bronx, etc.

2. I don't think he'll have to spend extensive political capital supposing there are 60 Democratic senators and the nominee has been vetted.  These filibusters are partisan votes, and not ones that you're going to see Snowe and Collins upholding just because the nominee believes in Roe v. Wade and whatnot.

3.  Ironically, picking someone completely due to tokenism could also restrict Obama's ability to select a nominee that's clean and drama free.

4. In terms of impressing Hispanic voters for 2012, as I've said before, I think that Obama would be best served by picking that justice closer to election day so it's fresh in voter's minds.  I agree with you that Obama needs there to be a Hispanic on the court by the end of 2012, but if he doesn't restrict himself only to Hispanic females then he'll have a wider range of legal minds to choose from.

5. What do you think of Kathleen Sullivan to make a symbolic statement?  She's gay

[Lunar]

Obama should ignore the interest groups.  If the best choice is a WASP male, he should pick him.  All I want out of the nominee is someone <55 years old, who will uphold Roe, the 2nd Amendment, and the death penalty.  Sadly, I don't think any such nominee exists.

If wishes were fishes then we'd all cast nets.  There are still all kinds of political concerns when it comes to appointing a justice, that's like saying Obama should ignore symbolism in his administration.  Yeah, right.

Besides, there are plenty of qualified people of both genders, there's no unquestionably "best" choice.

[Lunar]

So, a guy who was once rejected by a Republican-controlled Judiciary Committee for his possibly racist judicial leanings is now the head Republican in it?  Cool/sad.

[Lunar]

that means squeaky clean > tokenism?

[Lunar]

While there was a lot of criticism of his legal views, I don't recall a flood of questions about Alito's intellectual ability when he was nominated, yet he seems no more qualified than Sotomayor.  One must ask if she is being held to a different standard.

That's a long post, I'll try and get to it later.  Let me just talk about this, first.  Alito wasn't the only qualified white man available, and if he was, there would probably be more criticism of him.  Also, Sotomayor is suffering the inevitable downfall of being a frontrunner this early in the process, which means a closer scrutiny.  The author in this article seems more focused on criticism than his own biases -- I expect him to treat the other potential nominees roughly in the same way, an aggregate collection of opinions [anonymously] gathered from their associates.  Obviously this isn't the most credible way to construct a narrative, but it's the only way in a case like this.

[Lunar]

Wow I didn't realize Pam Karlan was openly gay.  Politico is headlining that fact right now.





It's fun to out people, good job Politico!

[Lunar]

 "(1) brilliant, (2) broadly knowledgeable — Cass Sunstein aside, I can’t think of anyone who knows so much about so many different legal fields — and (3) a spectacularly gifted writer" from a right-leaning Harvard Law professor, William Stuntz.



http://www.law.upenn.edu/blogs/dskeel/archives/2009/05/pam_karlan_and_souters_seat--s.html

[Lunar]

I bet that Obama will pick someone no one is talking about.

I'm trying to pimp the lesser known choices [*cough* Karlan] for that reason.

Hey, I won with Gillibrand, I'm trying to get my batting average up to 10%!

[Lunar]

Few outside the White House know whether the Sotomayor chatter is based on anything other than her popularity among center-left jurists, although her name has been the subject of conversation among some top officials recently. Sotomayor is seen as a compassionate voice for the underprivileged, and she has a solid, if unspectacular, record of jurisprudence. (For that reason alone, I don't know if she'll make the short list; Obama seems to go for the superlatives.)

Conservative talk radio hosts have begun impugning Sotomayor's credibility. And the respectable intellectual center -- see Jeffrey Rosen's case against her temperament and inherent intellectual abilities -- is beginning to have doubts.

...
There's a defense of Sotomayor somewhere out there -- her family history, stories of personal compassion, her best rulings -- but no one is making it. And for those who want Obama to nominate Sotomayor, that's a mistake.

The White House remains in lockdown over the nomination. They're not floating trial balloons. The pat responses from the White House about the qualities Obama wants in a nominee are not about selling any particular nominee. So the White House is not defending any prospective choice.

If Sotomayor loses control of her public image before her nomination, then liberal groups will have trouble in the months ahead. Obama's nominee will probably pass through the Senate fairly easily, but a discredited nominee -- even though she might make it to the Court -- will not. A Supreme Court fight is bound to energize liberals. 

Based on prior practices, if there is any political calculation involved at all, Obama wants to avoid energizing conservatives. He'd prefer to enervate them. Of course, finding an unimpeachable nominee who is acceptable to the left and doesn't light a fire under the right is difficult.

http://politics.theatlantic.com/2009/05/we_should_chat_scotussotomayortnridentity_politicsvetting.php

[Lunar]

I expect Obama to select an expert on the Constitution, not just anyone that's passed the Bar

[Lunar]

I expect Obama to select an expert on the Constitution, not just anyone that's passed the Bar

That sounds like a law professor to me. How many judges are experts on the Constitution? 

lol.

[Lunar]

http://www.salon.com/opinion/greenwald/2009/05/05/tnr/

The last update by Greenwald just goes to show how deviously dishonest was Rosen's article.

That's a good article that everyone who read the original article should also read, but I wouldn't be "deviously."

Yet the article accurately explains why Rosen encountered such a preponderance of negativity towards her from people who encountered her...

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seems to contradict this

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Is she uncommonly aggressive, or not?  If she is, then, as he pointed out, a lot of people probably are upset with her because of her temperament.

[Lunar]

I saw that, I think the insinuation is a bit dirty but interesting.  Rosen implied that this piece was the first of several that are going to skewer and profile all of the leaders, so I assume that will include Kagan and that Sotomayor got profiled first because she's the frontrunner.

Obviously anyone that goes from the South Bronx to Princeton is pretty smart, so I don't think that's in question.  What I'm probing is this question:  Should Obama pick anyone that isn't already known to be a brilliant Constitutional legal heavyweight?  Not that this was the standard used for other [I should say: white, male] justices.


Here, to be fair:

http://www.concurringopinions.com/archives/2009/05/the_case_for_so.html

"The Case for Sotomayor"

Now I could spend plenty of time telling you what a terrific person the Judge is, but that is not the object of Rosen's criticism. (Or, more accurately, the criticism of various anonymous folks-- what courage they have!) First, Rosen relates the view that "she is kind of a bully." (This is the same charge that Laura Ingraham made yesterday on Fox News Sunday.) That is completely false, unless bully is some kind of new code for "asks probing questions." One one occasion I sat through a jury trial that the Judge presided over where the lawyers on both sides were very green. While I could tell that she was perplexed by their performance, she was unfailingly courteous to them. After the trial was over, she invited them back and spent considerable time talking with them about trial strategy (she was a prosecutor for several years) to help them out in the future. I also observed her conduct of settlement negotiations (in her discovery management role) and saw how patient and effective she can be in that context, which I think will serve her well if she gets the Court appointment. With respect to appellate argument, I never saw anything but the best behavior from her, even in cases (and there were a few) where I did not agree with the position that she took or where the lawyers arguing before the panel were clueless. Accordingly, the idea that she does not have an appropriate judicial temperament is absurd. I would instead describe her as politically savvy.

Second, Rosen conveys the view that the Judge is "not that smart" or that her opinions are not "clean or tight." While I have not read every opinion she has written over the last seventeen years, once again this criticism is not at all consistent with what I know and with the opinions that I've read. The bottom line is that I have always been enormously impressed by her intellect, which is why I've always been eager to seek out her views on matters of professional concern. My academic interest in trademark law, for instance, got started from conversations that I had with her about her trademark practice when she was at her firm. It's difficult to give you a brief anecdote with the takeaway of, "Hey, she's really smart," but Rosen's collection of quotes sound like little more than sour grapes to me.

[Lunar]

Fair enough.  Rosen's piece is legitimately unqualified after reading some of the far more qualified and on-the-record criticism of her.

She may not be a legal heavyweight and she may be hard to get along with, limiting her ability to influence the court, but Rosen's gossipy sources are not indicative of that and his question proposed to Holder shows an innate bias.  Let's see if this is indeed a recurring segment.

[Lunar]

Rosen responds with a more substantive argument:

http://www.tnr.com/politics/story.html?id=6168aeb7-9869-43eb-b401-2204a0d84478

[Lunar]

also this:
http://www.balloon-juice.com/?p=20900


I agree with the criticisms of Rosen now.

[Lunar]

The criticism of Rosen is that according to his own accounts, some of his private sources had problems with Sonia, and then hooked him up with sources close to her that THEY selected, all anonymous, and then used it to write a smear piece that profoundly affected her life while all factual elements in his article are simply false. 

For such a controversial story, there are people who are willing to go on the record, relying on cherrpicked anonymous gossip seems unethical journalistically.

px75's Salon link is the best.