Rosen v. Sotomayor:
Jeff Rosen makes "The Case Against Sotomayor." in The New Republic. The article, subtitled "Indictments of Obama's front-runner to replace Souter," presents a highly unflattering picture of the Second Circuit judge. Here's a taste:
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.
This essay is the first in a series of profiles on potential Supreme Court nominees. If Rosen's this blunt about Sotomayor, it will be interesting what he has to say about the other short-listers.
UPDATE: Gerard Magliocca responds to Rosen on Concurring Opinions. His bottom line: "Rosen's negative characterization of the Judge, which is based on conversations with various unnamed lawyers, is inaccurate."
UPDATE: Matthew Yglesias thinks this is the money quote from Rosen's article:
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.
Greenwald v. Rosen
Glenn Greenwald responds to Jeffrey Rosen's article on Judge Sonia Sotomayor.
My perception of Sotomayor is almost the exact opposite of the picture painted by Rosen. I had a generally low opinion of the intellect of most judges -- it's one of the things I disliked most about the practice of law -- but I found her to be extremely perceptive, smart, shrewd and intellectually insightful. The image that has been instantaneously created of her as some sort of doltish mediocrity, based on nothing but Rosen's water-cooler chatter, is, at least to me, totally unrecognizable. Of the countless federal judges with whom I had substantive interaction over more than ten years of litigation, I would place her in the top tier when it comes to intellect. My impressions are very much in line with the author of this assessment of Sotomayor, who had much more extensive interaction with her and -- unlike Rosen's chatterers -- has the courage to attach his name to his statements. . . .
. . . Rosen's gossip has, in many places, already solidified as conventional wisdom about Sotomayor: if Obama selects her, it will mean that he has subordinated merit and intellect to gender and ethnic diversity.
Sotomayor's decades of achievement in the face of overwhelming obstacles just gets dismissed with a few slothful, totally irresponsible smears from Rosen and his invisible friends. But that's how "journalism" so often works -- people are allowed to remain hidden while their views and assertions are uncritically amplified in the loudest venues and bestowed with an authoritative veneer that they absolutely do not merit.
Rosen v. Sotomayor: The Footnote Question:
Michael Dorf has an interesting post on the "inexplicable error" in Jeff Rosen's article about potential Supreme Court nominee Judge Sonia Sotomayor. Dorf concludes: "either Rosen didn't read or didn't understand the Juncal footnote, or he did read and understand it but chose to mischaracterize it as a means of putting his own substantive point in the mouth of Judge Winter. Pick your poison." See also this post by Darren Hutchison.
Jeff Rosen responds to some of the criticisms of his profile of Judge Sonia Sotomayor. Word is, his profile of Elena Kagan is up next.
McClatchy's Michael Doyle consults the attorney evaluations of Supreme Court short-listers, Judges Sonia Sotomayor, Diane Wood, and Ann Williams. From his "quick read" he concludes: "Rosen may have been on to something with his piece, discomforting as it may have been . . . "
UPDATE: On the other hand, Rob Kar notes Sotomayor's evaluations are worse than they used to be, and wonders about the source of the apparent discrepancies.
Rosen on Sotomayor Redux:
Jeffrey Rosen has another short item on Sonia Sotomayor up at TNR. Rosen does not disavow his earlier criticism of Sotomayor, but also claims he never argued she "didn't have the potential to be a fine justice." While acknowledging she "obviously" was not his first choice, Rosen writes that "[n]ow is the time to think more broadly about the role Justice Sotomayor is likely to play on the Supreme Court." According to Rosen, " the strongest case to be made for Sotomayor is the idea that the range of her experience--as a trial judge, appellate judge, and commercial litigator--might give her the humility to recognize that courts participate in a dialogue with the political branches when it comes to defining constitutional rights, rather than having the last word. "
Jeff Rosen Quits "Blogging":
Rosen on Sotomayor, Part Tres:
Jeff Rosen may have quit blogging, but he's still writing articles about Judge Sonia Sotomayor. His latest appears in Time magazine. Here's a taste:
An examination of Sotomayor's career supports the idea that on the bench, she has been a racial moderate, not a radical. At the same time, her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed. And for that reason, if confirmed, she could influence the racially charged issues the Supreme Court will confront over the next few decades in unexpected ways. . . .
Sotomayor does not appear to be a crusader for radical change. She has always sought change from within the system rather than fundamentally challenging its premises. As a student at Princeton, she co-chaired a Puerto Rican student organization and filed a complaint with the Equal Employment Opportunity Commission about Princeton's affirmative-action failures, leading to the hiring of the first Hispanic dean of students. But she acted in such a constructive way that William Bowen, then university president, helped select her for the Pyne Prize, the highest honor Princeton bestows on undergraduates. Sotomayor's experiences as an outsider in an Ivy League world seem to have made her pragmatic rather than rigid, leading her to thrive within the Establishment even as she sought to improve it. . . .
Sotomayor's unique background and views about race and gender are likely to become more important over time. In coming years, there may well be challenges to the death penalty, for example, on the grounds that it is imposed in a racially discriminatory way. The court rejected that claim in 1987, but Sotomayor might be sympathetic to it. In 1981, as a member of the board of directors of the Puerto Rican Legal Defense and Education Fund, she was part of a committee that recommended that the fund oppose the reinstatement of the death penalty in New York State on the grounds that "capital punishment is associated with evident racism in our society."
Sotomayor's more liberal inclinations in immigration cases may also make a difference on a court that will increasingly have to wrestle with legal distinctions in the U.S. between citizens and aliens. As Obama disappoints civil libertarians by reaffirming aspects of President Bush's antiterrorism policies — including the claim that terrorism detainees held by U.S. forces in Afghanistan have no legal right to challenge their detention in U.S. courts — some of these policies may reach the Supreme Court. Sotomayor could prove skeptical of the claim often made by the government that the rights of aliens differ sharply from the rights of citizens in the war on terrorism and in other cases.
If Sotomayor is confirmed, as expected, the only thing one can confidently predict is that the cases involving race and diversity that she will confront are very different from the ones we are thinking about today. In that sense, the evolution of Sotomayor's thinking in the years ahead may be more consequential than what she has said in her past.
Rosen on Sotomayor, Part IV - The Liberal Dissenter:
Jeff Rosen will have another article on Judge Sonia Sotomayor in the July 1 TNR. This article focuses on her dissenting opinions and concludes that Sotomayor is, in fact, quite liberal, and could help push the Court to the left in economic and criminal law cases. Here's a taste of the article:
If Sotomayor's majority opinions are often hard to distinguish from those of her fellow appellate judges, perhaps that's not surprising in a genre so heavily constrained by legal precedents. It's often in dissents that appellate judges can express their true selves--their passions, judicial philosophies, and unique views of the law. And Sotomayor's little-noticed dissents are clearly the opinions in which she has the greatest personal investment. Unlike her majority opinions, her dissents sometimes show flashes of civil-libertarian passion or indignation, even as they remain closely grounded in facts and precedents. Most important, they are substantively bold, staking out unequivocal liberal positions--from a broad reading of the Americans with Disabilities Act to sympathy for the due-process rights of a mentally ill defendant.
Sotomayor, who published 226 majority opinions on the merits during her more than ten years on the appellate court, published only 21 dissents--a rate slightly below average for appellate judges. Although not always ideologically predictable, they are far more liberal than her majority opinions: According to Stefanie A. Lindquist of the University of Texas, Austin, 63 percent of her dissents can be characterized as liberal, as opposed to 38 percent of her majority opinions. (Only five of the 21 dissents are clearly conservative.) It's in these dissents that a different view of Sotomayor emerges: a judge who can be both crusading and open-minded. . . .
Even if Sotomayor may not turn out to be a master of internal court politics in the style of Obama's judicial hero, Earl Warren, her dissenting opinions suggest that she could play a different but still useful role: a strong voice for civil liberties, and economic and social justice--sometimes in the majority, sometimes in dissent. The fact that the Roberts Court currently has no liberal justice who consistently plays this role is all the more reason to welcome the addition of her voice. As Frank Cross puts it: "She may not have been my first choice, but she's a good choice. Her dissenting opinions look liberal but not knee-jerk, and she goes against the grain sometimes; she issued a few significant conservative decisions." And the politics of her appointment are so overwhelming that they're difficult to resist. For these reasons, conservatives will have a hard time attacking her as judicial ideologue, and Democrats can vote for her with hope and expectation.