The Case Against Sotomayor

[Ogre Mage]

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.

[Ogre Mage]

I noticed that the main sources for this piece are "former law clerks for other judges on the Second Circuit" and "former federal prosecutors in New York" all of whom have been cited anonymously.  Character attacks from anonymous sources don't strike me as credible.  We have no idea what their agenda is or if they have ties to other potential nominees.

I find the charges of Sotomayor being "a bully" and "domineering" to be rather laughable.  First, they sound awfully similar to accusations in a conservative attack memo released a few days ago, making one wonder exactly who Rosen's sources are.

http://www.politico.com/blogs/bensmith/0509/Conservatives_target_Sotomayor_Kagan_Wood.html

At any rate, I would hope for a forceful advocate on the bench, not some wallflower who is going to let Scalia walk all over her.  I've heard women lawyers described in similar terms before and it smacks of more than a little sexism.  As for the charge she has an "inflated opinion of herself" -- well, so do the majority of the current members of the Supreme Court.

The more substantive criticism is that Sotomayor, while intelligent, is just not brilliant enough for the Court.  While her ability to interpret a statue and express her view of the law is a valid topic for discussion, I'm going to attack a scared cow and say brilliance is overrated. 

When Sandra Day O'Connor arrived at the Court in 1981, she was regarded as smart and capable, but hardly one of the brilliant legal thinkers of her time.  Yet as the years passed, she become one of the most influential Justices in recent history -- many of the most crucial and high profile cases were essentially decided by her -- so much so that one analyst joked that she was "the most powerful woman in the universe." 

In contrast, Antonin Scalia is widely regarded as brilliant even by his foes and his opinions have been quite influential among conservative legal thinkers.  Yet his influence on the other Justices has been minimal. 

Judge Sotomayor got her undergraduate degree from Princeton summa cum laude and was an editor for the Yale Law Review while in law school.  She worked as an assistant district attorney in NY as well as in private practice.  She has been a judge for 16 years, including 10 on the Federal Court of Appeals.  This is the background of a highly qualified Supreme Court nominee, not some minimally qualified affirmative action flunkie.

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.

[Ogre Mage]

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.

Except that in this case, it actually was mainly anonymous sources from law clerks of other judges on the 2nd circuit and former federal prosecutors.  Rosen does not have even one on the record source.  Most of this piece reads as tabloid journalism passed off as legal analysis.  I don't know why anonymous former law clerks of other judges would have have some special insight into Sotomayor's fitness for the Supreme Court.

And Prof. Darren Hutchison says Rosen doesn't even get his facts straight:

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http://dissentingjustice.blogspot.com/2009/05/hatchet-job-jeffrey-rosens-utterly.html

[Ogre Mage]

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.

Alito was editor of the Yale Law Journal, clerked for Judge Leonard I. Garth of the Third Circuit, was United States Attorney for the District of New Jersey for 3 years, and spent 16 years on the United States Court of Appeals for the Third Circuit.  He was extremely qualified, perhaps even more so than Sotomayor.

Sotomayor is equally well-qualified.  Their resumes are pretty comparable, but only Sotomayor has been tagged as mediocre and intellectually unfit.  Both got their B.A. at Princeton and attended Yale Law School, where they both edited the law review.  She doesn't have his experience serving as a U.S. Attorney, but she was a NY District Attorney and one could argue her judicial experience is actually broader, as she has been a judge in both the Federal District Court and the Federal Court of Appeals, giving her both trial and appellate court experience.  Alito's work as a judge was all at the appellate level.

None of this is to say she should be a shoo-in.  However, my bullsh**t detector has been going off with regards to much of the criticism I have been reading about her.

[Ogre Mage]

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.
 

Yes.  The Washington Post profiled Sotomayor here.  Unlike Rosen, the writer actually has people willing to speak on the record.

http://www.washingtonpost.com/wp-dyn/content/article/2009/05/06/AR2009050603762.html?hpid=moreheadlines

Rosen's piece was extremely poor journalism, one which would have been given an F by any journalism professor worth their salt.  In his original piece, he said a footnote by Judge Winter in Sotomayor's Samaria opinion was an indirect criticism of her.  I am not a lawyer but after reading it, I did not have that impression.  Now he tells us his assessment was based on his anonymous sources telling him that was the "widely assumed" interpretation.  And the reader is supposed to believe that just because "anonymous sources" say so?  That is just very sloppy or he is being a hack to come to a predetermined conclusion.

I will not take seriously anything he says about Sotomayor in the future. 

[Ogre Mage]

This is an excerpt from a piece Rosen wrote in 1995:

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http://www.nytimes.com/1995/03/17/opinion/mediocrity-on-the-bench.html?n=Top/Reference/Times%20Topics/Subjects/J/Judges

Rosen is laboring under the delusion that excellence and diversity are mutually exclusive.  His assessment of Diane Wood was wrong as she is now widely regarded as an outstanding judge and writer of opinions, not to mention one of the top-tier candidates for the Supreme Court.

Between this and his question to then AG nominee Eric Holder, he clearly has a bias problem.