7
   

The Case Against Sotomayor

 
 
Miller
 
Reply Tue 26 May, 2009 09:08 am
The New Republic
The Case Against Sotomayor by Jeffrey Rosen
Indictments of Obama's front-runner to replace Souter.
Post Date Monday, May 04, 2009

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 example, 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.)

Not all the former clerks for other judges I talked to were skeptical about Sotomayor. "I know the word on the street is that she's not the brainiest of people, but I didn't have that experience," said one former clerk for another judge. "She's an incredibly impressive person, she's not shy or apologetic about who she is, and that's great." This supporter praised Sotomayor for not being a wilting violet. "She commands attention, she's clearly in charge, she speaks her mind, she's funny, she's voluble, and she has ownership over the role in a very positive way," she said. "She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?"

I haven't read enough of Sotomayor's opinions to have a confident sense of them, nor have I talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths. It's possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities. But they're not motivated by sour grapes or by ideological disagreement--they'd like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard. Given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble.

Jeffrey Rosen is the legal affairs editor at The New Republi
 
panzade
 
  1  
Reply Tue 26 May, 2009 09:18 am
interesting...I'd love to see an article about the background of some other choices the prez could have made...
Cycloptichorn
 
  1  
Reply Tue 26 May, 2009 09:22 am
This article has been widely denounced amongst those on the left, due to the fact that there is not a single named source in the entire thing. Just smears. And it turns out that Rosen has a history of smearing female supreme court nominees and potential nominees in this fashion.

Cycloptichorn
engineer
 
  1  
Reply Tue 26 May, 2009 09:48 am
@panzade,
panzade wrote:

interesting...I'd love to see an article about the background of some other choices the prez could have made...

I'm sure there is an article like this ready for every logical candidate so that it could go to press instantly.
panzade
 
  1  
Reply Tue 26 May, 2009 09:49 am
@engineer,
lol...yeah, and I'm too lazy to look
0 Replies
 
BumbleBeeBoogie
 
  1  
Reply Tue 26 May, 2009 09:51 am
@Cycloptichorn,
Cyc, the "women aren't as smart as men" syndrome?

BBB
panzade
 
  1  
Reply Tue 26 May, 2009 09:53 am
@BumbleBeeBoogie,
has Ginsberg ever been tagged with this?
0 Replies
 
Cycloptichorn
 
  1  
Reply Tue 26 May, 2009 09:54 am
@BumbleBeeBoogie,
BumbleBeeBoogie wrote:

Cyc, the "women aren't as smart as men" syndrome?

BBB


Yup. I'll look for the article today, but apparently Rosen has a long history of describing every single female appointee he's written about as 'not the best choice' or 'picked b/c she's a woman.'

Cycloptichorn
BumbleBeeBoogie
 
  1  
Reply Tue 26 May, 2009 10:06 am
@Cycloptichorn,
Jeffrey Rosen
From Wikipedia, the free encyclopedia
Jeffrey Rosen is an American academic and commentator on legal affairs.

Rosen is the son of Sidney and Estelle Rosen, both of whom are psychiatrists.[1] He has been married to Christine Stolba, a historian, since 2003. He graduated summa cum laude from Harvard University and was a Marshall scholar at Oxford University, from which he received a second bachelor's degree. He also has a law degree from Yale Law School.[1]

He is a professor of law at George Washington University Law School in Washington, D.C. and has been the commentator on legal affairs for The New Republic since 1992. He often appears as a guest on National Public Radio.

Bibliography
The Supreme Court: The Personalities and Rivalries that Defined America, New York: Times Books, 2007. ISBN 0805081828.
The Most Democratic Branch: How the Courts Serve America, New York: Oxford University Press, 2006. ISBN 0195174437.
The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age, New York: Random House, 2004. ISBN 0375508007.
The Unwanted Gaze: The Destruction of Privacy in America, New York: Random House, 2000. ISBN 0679445463.

"WEDDING/CELEBRATIONS; Christine Stolba, Jeffrey Rosen". New York Times. March 9, 2003. http://query.nytimes.com/gst/fullpage.html?res=9400EFD9103FF93AA35750C0A9659C8B63. Retrieved on 2007-11-01.

References
Rosen, Jeffrey (2004). "About the Author". The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (1st Trade Paperback ed.). New York: Random House. ISBN 0375759859.
0 Replies
 
joefromchicago
 
  4  
Reply Tue 26 May, 2009 11:29 am
@Miller,
Jeffrey Rosen wrote:
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?")

There are plenty of jurists who can accurately be described as "kind of a bully on the bench." In their book The Brethren, Woodward and Bernstein made it clear that the nicest guy on the supreme court at that time was William Rehnquist, while the biggest douchebag by far was William O. Douglas. In an all-time ranking of supreme court justices, however, it's likely that Douglas would be far ahead of Rehnquist.

Jeffrey Rosen wrote:
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."

How is that "being charitable?" Sounds laudatory to me.

Jeffrey Rosen wrote:
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 example, 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.

Well, those kind of memos probably rankled those unnamed former clerks more than the judges for whom they clerked. It's the job of the clerks, after all, to make sure the first drafts don't go out with lots of typos and other errors.

Jeffrey Rosen wrote:
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.

If Winter thought that Sotomayor had ruled incorrectly on a point of law, it was his duty to state that clearly, not just drop a cryptic footnote in an opinion. I'd very much like to see this footnote, but then Rosen no more identifies this case than he identifies his sources.

Jeffrey Rosen wrote:
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.)

Circuit courts routinely issue summary denials of appeal in cases. If the district court was right and its opinion sound, there's really no reason to issue an appellate opinion saying the same thing. Criticizing such a summary denial as lacking references to precedent misses the point: if the district court opinion contained those references, there's no point in repeating them.

Jeffrey Rosen wrote:
I haven't read enough of Sotomayor's opinions to have a confident sense of them, nor have I talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths.

But that doesn't stop Rosen from commenting on Sotomayor's qualifications.
0 Replies
 
McGentrix
 
  1  
Reply Tue 26 May, 2009 12:35 pm
Where is the thread stating the case FOR Sotomayor? That should be a good and interesting read.
parados
 
  1  
Reply Tue 26 May, 2009 01:22 pm
@McGentrix,
McGentrix wrote:

Where is the thread stating the case FOR Sotomayor? That should be a good and interesting read.


Maybe those that don't oppose Sotomayor on simple ideological grounds are doing to do their research before they comment. Of course idealogues would attack a nomination before they even know anything about her.
Foofie
 
  1  
Reply Tue 26 May, 2009 08:48 pm
Paraphrasing some comments on radio, President Obama needs the Hispanic vote in 2012; this could help. Assuming the validity of that comment, if not this lady, then President Obama would have picked someone else, that many conservatives would have felt disppointment. Should a conservative have expected anything different?
genoves
 
  -1  
Reply Wed 27 May, 2009 02:46 am
I think she is a marvelous choice. She'll cement the Hispanic vote for Obama.

Now, when there are other vacancies on the court, Obama should, as he always does since he has so much empathy, reach out to the dispossessed and those who have not been accepted by the larger society because of prejudice.

His next pick should be a disabled Lesbian Mexican from the appellate court.

That should not only bring an outstanding jurist to the Supreme Court but it should also gain Obama scads of votes from the Gays, Disabled and Mexicans.

kuvasz
 
  1  
Reply Wed 27 May, 2009 09:37 am
@Miller,
still giving half the story, eh miller?

btw from the author cited in the first post.

Quote:
Conservatives are already citing my initial piece on Sotomayor as a basis for opposing her. This willfully misreads both my piece and the follow-up response. My concern was that she might not make the most effective liberal voice on the Court--not that she didn't have the potential to be a fine justice.


http://blogs.tnr.com/tnr/blogs/the_plank/archive/2009/05/26/the-sotomayor-nomination.aspx
0 Replies
 
Miller
 
  1  
Reply Thu 28 May, 2009 07:59 am
@parados,
parados wrote:
Of course idealogues would attack a nomination before they even know anything about her.

But we do know lots about her. She was reared by a single mother, attended a Catholic NY high school, lived in public housing and gained admission to Yale and Princeton.

She has empathy and because of this, she's the apple of Obama's eye.

I wonder if her former husband would care to comment on her "empathy".
Miller
 
  1  
Reply Thu 28 May, 2009 08:01 am
@Foofie,
Foofie wrote:

Paraphrasing some comments on radio, President Obama needs the Hispanic vote in 2012; this could help. Assuming the validity of that comment, if not this lady, then President Obama would have picked someone else, that many conservatives would have felt disppointment. Should a conservative have expected anything different?


There are many well qualified black women, who should have considered.
But...for some reason, Obama didn't select any of them.
Miller
 
  1  
Reply Thu 28 May, 2009 08:06 am
@genoves,
genoves wrote:


His next pick should be a disabled Lesbian Mexican from the appellate court.


We don't know anything about her sexuality and for all we know, the lesbian issue could be a possibility. Who knows?

The disability issue is real however, as Sotomayor is a diabetic and based on her physical appearance, I'd say she has problems staying healthy, robust and fit. Time will tell, how her appointment affects her longevity. She could die in office from stress and the side effects of her diabetic condition.
0 Replies
 
Foofie
 
  1  
Reply Thu 28 May, 2009 10:37 am
@Miller,
Miller wrote:

Foofie wrote:

Paraphrasing some comments on radio, President Obama needs the Hispanic vote in 2012; this could help. Assuming the validity of that comment, if not this lady, then President Obama would have picked someone else, that many conservatives would have felt disppointment. Should a conservative have expected anything different?


There are many well qualified black women, who should have considered.
But...for some reason, Obama didn't select any of them.


Are there any white, male Protestants on the Supreme Court? If white Presidents choose a person of color to be on the Court, then what makes President Obama so comfortable with not choosing a white person for the Court? Are there not laws against discrimination based on handicapped melanin cells?
Cycloptichorn
 
  1  
Reply Thu 28 May, 2009 10:43 am
@Foofie,
Foofie wrote:

Miller wrote:

Foofie wrote:

Paraphrasing some comments on radio, President Obama needs the Hispanic vote in 2012; this could help. Assuming the validity of that comment, if not this lady, then President Obama would have picked someone else, that many conservatives would have felt disppointment. Should a conservative have expected anything different?


There are many well qualified black women, who should have considered.
But...for some reason, Obama didn't select any of them.


Are there any white, male Protestants on the Supreme Court? If white Presidents choose a person of color to be on the Court, then what makes President Obama so comfortable with not choosing a white person for the Court? Are there not laws against discrimination based on handicapped melanin cells?


Only one, to my knowledge.

Cycloptichorn
0 Replies
 
 

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