The Case Against Sotomayor

[Torie]

She seems like a horrid choice per the above thumbnail sketch. There should be no room on the court for intellectual mediocrities of any stripe. I doubt that she will be very happy there. She will be in over her head, ala Justice Harry Blackmun.

[Torie]

She will be in over her head, ala Justice Harry Blackmun.

How was Blackmun over his head?

He had great trouble writing opinions (he was very slow and wrote relatively few as a result), as well as understanding the legal issues, and relied heavily on his clerks, who could substantially influence him.   The guy was just short about 20 points in IQ poor thing.

[Torie]

I have problems with Rosen's so-called analysis.  I'll write more later, but given his continuous insinuations that she just isn't brilliant enough, frankly I think the most significant thing he wrote was this:

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Also, this is a question Rosen had for then Attorney General nominee Eric Holder:

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http://www.nytimes.com/2009/01/15/opinion/15questions.html

Frankly, I think that question says something about Mr. Rosen's personal biases.

Rosen in the past has been an extremely impressive in his analysis of SCOTUS and the personages on it, or who want to be on it. He's a liberal, but he is very smart, and knowledgeable. Without reaching the merits as to his comments on this particular woman, it would be a mistake to sell him short, or depreciate his views assuming that they are colored by  bias to the point that they distort any reasonable possible reality.  He is just better than that. JMO.

[Torie]

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? 

[Torie]

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.

Alito was considered an outstanding judge, including by liberals, with an excellent judicial temperament. Is that also true of Sotomayor?

[Torie]

How about Judge Reinhardt?

Of the 9th circus?

I assume this is a joke. He is considered on of the most liberal justice on the court of appeals. Not to mention he has one of the worst records in terms of reversals by the SC.

Isn't he an old anyway?

[Torie]

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


I agree with the criticisms of Rosen now.

What is wrong with repeating such private comments again?  Is the issue that Rosen seemed to consider such comments dispositive rather than something to look into further?

[Torie]

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.

I don't think repeating such gossip is unethical, as long as their is full disclosure that the sources have a bias so should be taken as dispositive. Do you disagree with that?  Why should Rosen "know" the buzz, yet have some duty not to share it?

[Torie]

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.

I don't think repeating such gossip is unethical, as long as their is full disclosure that the sources have a bias so should be taken as dispositive. Do you disagree with that?  Why should Rosen "know" the buzz, yet have some duty not to share it?

Because Rosen claims that the people who provided these negative comments/smears on Sotomayor are ''prominent liberal scholars'' but we are unable to verify that because they all speak in anonymity. For all we know they might have an invested interest into seeing somebody else picked for the Supreme Court and they are willingly lying in order to sabotage Sotomayor (like Rosen himself apparently).

And as Greenwald says if they are indeed prominent legal scholars and not lawyers or clerks, then there is no excuse for them for refusing to talk on the record. Except of course if they want to lie and smear, and they want to do it with impunity.   

Of course there is also the problem of Rosen's own bias which showed mostly at his previous article where he questioned Sotomayor's intelligence and character, even though he admitted that he hasn't read any of her opinions. And not only that, but his main argument for her supposedly mediocre legal skils turned out to be completely false. And when he was caught he refused to apologize and instead offered some silly excuse about how there is a subliminal criticism somewhere in the footnote of judge Winter, which can only be perceived by Rosen's anonymous sources.

And it's funny how Rosen failed to find one person to speak positively about Sotomayor when so many other journalists had no such problem. And they all spoke on record of course.
 

I guess I give a bit more credence to  Rosen than you based on my experience, with him in the past,  but I take your point. You think he was out to do a hatchet job, and may be disingenuous when he ascribes a certain gravitas to his sources, which may in fact be absent. That may be true. We may never know for sure. In any event, it would be a mistake to rely on just one guy's opinion/sources anyway; the check is that others will pipe up. Stereo "sounds" better than "mono" obviously (a couple of terms from the past of an old for you there ).

[Torie]

What everyone knows and what is right are obviously two different things.

Judges make policy. It's not something "bad" judges do, it is an unavoidable part of the job. The Constitution does not provide literal instructions for every possible case that can come before a court. How a judge interprets the law is how he or she creates policy. You may consider one approach a better approach, but it is simply a different form of the same act.

The "funny" thing is that in fact that is far more true about the law in general than most layman might imagine. The human experience is just so complex, that mere language (legal or otherwise) cannot possible capture all the possible hypotheticals, some of which sometimes turn into a case or controversy down the road, so there is imprecision and ambiguity. That is one of the main reasons as to why lawyers make the big bucks.