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POLITICS MAY 8, 2009

More Sotomayor

BY JEFFREY ROSEN

I’ve just returned from London to find that my piece on Sonia Sotomayor has provoked an energetic response in the blogosphere.



Many people have mischaracterized my argument, and I can understand why. The headline--“The Case Against Sotomayor”--promised something much stronger than I intended to deliver. As soon as the piece was published, I regretted the headline, which I hadn’t seen in advance. The piece was not meant to be a definitive “case against” Judge Sotomayor’s candidacy. It was intended to convey questions about her judicial temperament that sources had expressed to me in the preceding weeks. That’s why I concluded the piece not by suggesting that Sotomayor was unqualified for the Supreme Court, but by suggesting that “given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble.”



Readers have asked for more information about my sources. A few weeks ago, I received phone calls from eminent liberal scholars I know and trust. These scholars closely follow Sotomayor’s work and expressed questions about her temperament. They did not have axes to grind or personal agendas; they are Democrats who want President Obama to appoint the most effective liberal Supreme Court justices possible and were concerned Sotomayor might not meet that high standard. They put me in touch with others in the same situation--mostly former Second Circuit clerks and prosecutors who have argued before her--and nearly all of them expressed the same view, with exceptions I noted in the piece. None of these people would have talked to me without the promise of anonymity: some still argue before the judge, and others continue to interact with her. (And, no, despite a conspiracy-minded suggestion to the contrary, one of my sources was not my brother-in-law, Neal Katyal, currently the deputy U.S. Solicitor General.) Anonymous comments aren’t ideal, but there was no other way, in this situation, to get people to share candid questions about judicial temperament.



I was satisfied that my sources’s concerns were widely shared when I read Sotomayor’s entry in the Almanac of the Federal Judiciary, which includes the rating of judges based on the collective opinions of the lawyers who work with them. Usually lawyers provide fairly positive comments. That’s what makes the discussion of Sotomayor’s temperament so striking. Here it is:




Sotomayor can be tough on lawyers, according to those interviewed. "She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive--not very judicial. She does not have a very good temperament." "She abuses lawyers." "She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like."



Not all of Sotomayor’s lawyers’ evaluations in other areas were this negative. As the Almanac puts it “most of lawyers interviewed said Sotomayor has good legal ability,” and “lawyers said Sotomayor is very active and well-prepared at oral argument.” I acknowledged both of these views in the piece.



Some readers have also questioned my confession at the end of the piece that I hadn’t read enough of her opinions to make a fully confident judgment. Perhaps I conceded too much: I had read enough of her opinions to find them good but not great--like much of the competent but not especially distinctive writing that characterizes most federal appellate opinions. In the past few days, I’ve read many more opinions, and nothing has called my initial judgment into question. For what it’s worth, that judgment is consistent with that of the lawyers in the Federal Almanac:



Lawyers interviewed said Sotomayor writes good opinions. "Her opinions are O.K, by and large." "She writes very clear and careful prose in her opinions." "Her writing is good." "Her opinions are generally well-reasoned and well-argued." "She writes well." "She is a very good writer." "Her writing is not distinguished, but is perfectly competent."



Some readers have questioned my account of how “a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor [United States v. Samaria] might have inadvertently misstated the law in a way that misled litigants.” Indeed, the footnote is hardly a model of clarity—and I can see why readers might not come to the same conclusion I reached. But the careful observers of the Second Circuit I talked to, who were familiar with the case, said Winter was widely assumed to be making an effort to be polite, avoiding direct criticism of his colleague while trying to distinguish Sotomayor’s holding in Samaria from some loosely written dicta. In their view, Sotomayor’s dicta in Samaria could indeed be read to call the earlier cases into question, just as the litigants suggested, and they believe Winter was trying to contain the damage to avoid embarrassing his colleague.



If the piece had a less provocative headline, perhaps it would have been clearer that I wasn’t presuming to make a definitive judgment, but to encourage the White House to weigh considerations of temperament against the many other factors they’ll be considering. Sotomayor is an able candidate--at least as able as some of the current Supreme Court justices--and if Obama is convinced she is the best candidate on his short list, he should pick her. For the next Supreme Court seat, the president needs to be sure that the nominee’s temperament and abilities are not merely impressive but absolutely stellar. She--and the next justice should indeed be a she--must be ready to challenge the conservatives and persuade her fellow liberals from the very beginning. I look forward to exploring some of the other names on the short list soon.



Jeffrey Rosen is the legal affairs editor at The New Republic.

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124 comments

On your point about the Almanac comments, I note only that comments about Judges Easterbrook and Posner tend to read exactly like those you've excepted here (particularly with regard to temperament). I don't recall ever reading any article about Posner's or Easterbrook's temperament when their names were mentioned for these vacancies, nor has anyone ever questioned their intellectual chops. Frankly, it doesn't surprise me that some practitioners have hard feelings about judges who are smarter than they are and who might therefore embarrass them. All of this to me raises the general question of why no one ever talks about the temperament of male nominees? How would Scalia's temperament have rated? Could it be that there's just a little bit of unintentional sexism here?

- Bill

May 7, 2009 at 2:30pm

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Please... for the Love... Just appoint Elena Kagan and save us all a lot of trouble!

- Court Watcher

May 7, 2009 at 2:35pm

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I find it very interesting that Rosen's defense of his original article attacking Judge Sotomayor does not make even the slightest attempt to defend what was by far the most explosive, and frankly the most ridiculous, cluster of smears that appeared in the original article: the shocking, repeated claim that Judge Sotomayor was "not that smart," "not the brainiest," asks questions that "don't get to the heart of the issue," would be unable to "provide an intellectual counterweight" to the right, et cetera. This not-smart allegation was the one that set off the loudest alarm bells in the legal circles I travel in. Whatever else you want to say about Judge Sotomayor, she has a clear reputation in the real world as one of the intellectual stars of the Second Circuit, a powerhouse of a judge who asks excellent, piercing questions at oral argument and writes thoughtful, brilliant opinions. Practically everyone who has ever worked with (or against) Sonia Sotomayor brings up her intellectual firepower pretty early in the conversation. Thus, the "not smart" allegation was the one led so many lawyers I talk to to conclude that Rosen is either part of, or being used by, some kind of whisper smear campaign against this judge. So I find it extremely telling that Rosen has apparently retreated entirely from the allegations about Sotomayor's intelligence. From reading "More Sotomayor," one could get the impression that the original article was all about temperament, not smarts. But it was the "intellectual counterweight" question that Rosen himself said in the original article was what mattered "most of all"! And it's this allegation about intelligence that most deeply plays into the hands of anti-"affirmative action" conservatives who just love to suggest that this woman, despite graduating summa cum laude at Princeton and so on, isn't as smart as a white guy.

- Yale law

May 7, 2009 at 3:05pm

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Many of our ablest judges could be quite "difficult" at oral argument -- e.g., Harry Edwards, Kozinsky, Garland, Posner, Easterbrook. Scalia, obviously. Even the usually gentle Souter could be dogged and tough. While it certainly can be taken too far, it's often a mark of engagement and of desiring to pierce the lawyerly evasions. At most a venial defect. It would have to be really extreme for this even to be considered a relevant factor -- in the case of a male judge. And to the extent you're relying on prosecutors, it's not inappropriate for judges to be harder on sophisticated litigants, who have enormous advantages, when they offer weak positions on behalf of the people. I wonder whether your probed the backgrounds of these negative appraisals at all. (I find it hard not to think ill of judges when they rule against my position, for example). Your treatment of the Winter/Samaria footnote is wholly unpersuasive, and does not alter my view of this piece as a biased, weakly supported hatchet job.

- CHD

May 7, 2009 at 3:16pm

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Neither Posner nor Easterbrook were serious Bush SCOTUS candidates. Top conservative judges, but too old. I really don't see what the outrage over this piece is all about. Rosen started out stating that she was widely praised, which coupled with the fact that she's experienced and has a great resume, leads to the natural assumption that she is qualified for the Supreme Court. He then presented the opinions of a few, which were presented as the opinions of a few, that suggest otherwise. There are apparently enough of these naysayers based on his sources and the Almanac to at least make their views relevant and not complete outliers. And yet, the response to this is the Rosen is a racist-sexist-nepotist who's secretly just trying to get Neal Katyal appointed Solicitor General. Get a grip liberal blogosphere.

- bgtd

May 7, 2009 at 3:17pm

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I am disturbed to see that Mr. Rosen still has not read Samaria, the Sotomayor opinion cited in the Winter footnote. It is an absolutely unassailable opinion that adheres closely to precedent (the very precedent Winter cites) on the issue of conscious avoidance. Indeed, I challenge Mr. Rosen to point to any “loosely written dicta” to which Winter could have been referring. Winter’s footnote is indeed unusual -- in that it reaches out to address a frivolous argument raised by an appellant in an entirely different case -- but not for any reason related to Judge Sotomayor.

- Lawyer

May 7, 2009 at 3:27pm

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While I can understand why practicing attorneys and law clerks would desire anonymity, I would think that if "eminent scholars" have something to say about a public figure, they should have the courage to say it directly rather than anonymously through an intermediate. That's part of what being a scholar is all about, and why scholars are given tenure.

- Mark

May 7, 2009 at 3:52pm

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I've been seeing a lot of wish lists lately about what Obama should be seeking in Souter's replacement. Liberals want someone of unparalleled brilliance, whose opinions will light the way for others and even, by the force of their compelling and airtight arguments, pull moderates and conservatives along. I am all in favor of this, but I've yet to see any names floated that would meet this criteria. Suggestions, anyone?

- Bondosan

May 7, 2009 at 3:53pm

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What a waste of an education - Harvard, Yale, Oxford, and still a slimebag.

- Arun Gupta

May 7, 2009 at 4:24pm

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I am surprised that your last article received so many hysterical repsonses, but this one only two. I thought both pieces were fair. Sotomayor, while smart, is not brilliant when compared to USSC judges over time. The fact that she may be brighter than some now, while completely assuming, does not matter. What matters is that the court find a Brennan or a Cardozo like character with these next three picks. This woman simply wastes a whole pick for political reasons. Bad move I would say.

- That Guy

May 7, 2009 at 4:26pm

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So basically you and your anonymous sources have reservations about Sotomayor because some view her as aggressive and opinionated during oral arguments. And you have a problem with that. Why? Because she's a woman? Because she's Latina? Seriously. You have to admit it begs the question. REEKS of prejudice.

- Alex

May 7, 2009 at 4:32pm

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The biggest problem is that the title fit so well. If it had felt like a well reasoned, balanced piece, there would be little complaint. But instead, the article goes out of it's way to make Sotomayor look like a well-meaning bumbler, from set-up to finish; this is called framing the issue, and you do a wonderful job. Assuming you dislike Sotomayor. And to top it off, you manage to make yourself look just as incompetent, at least as a journalist. Hearsay doesn't fly in the court room, and shouldn't have any place in journalism. I would suggest that you sit in on a few journalism classes at GW, but based on the standards in the industry at large, I'm not sure you would learn anything worthwhile.

- mjtimber

May 7, 2009 at 4:41pm

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Hi Jeff, and this is what you call serious legal journalism? Lots of lawyer gossip, nothing more and nothing less. If Thomas, Scalia, O`Connor are okay for the S.C. then why the fuss about Sotomayor? Friedrich Frankfurter (Boston)

- F. Frankfurter

May 7, 2009 at 4:44pm

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I agree with your analysis and response. As a former SDNY clerk and AUSA, I had heard the same about this judge before your article. Greenwald didn't do his homework on your allged "source". He finished his clerkship before Sotomayor joined the court.

- RevSykes

May 7, 2009 at 4:49pm

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I found Jeffrey Rosen's response to these dirty, filthy bloggers to be entirely unnecessary. They are merely worthless rabble and one ought not deign to give them or their "opinions" any notice since they have proven unable to ascend to The Club of Seriousness and obviously are our social and intellectual inferiors. I would rather converse with a flea than to honor their dull, liberal, un-opinions with any response whatsoever.

- Not Jeffrey Rosen

May 7, 2009 at 5:09pm

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I wonder that it has come to be that citing someone for "abject cowardice" has continued to mean, consistent with the meaning of each word in the phrase and their relationship one to the other, a most detestable and despicable manifestation of a bad thing, while citing someone for having made an "abject apology" has come to mean a most unconditional and unreservedly submissive type of a good thing. Anyway, your post here is so far short of qualifying for the latter that it serves to exacerbate the inclination of your first post towards the former. Look: you're a law prof, thus supposed to be at least something of an academic, and TNR publishes your commentary with the suggestion of it coming from that point of view. With no more incentive than the NEGATIVE energy your first post sparked, I spent a little under an hour on the toobz reading through seven separate opinions Judge Sotomayor delivered, and just from that I got at least the impression of a particular writing style, approach to decision-making, judicial philosophy and value system, in context with the issues and other opinions in the same cases. But as I indicate, just an impression: I would want to, I would HAVE TO if I believed someone else might be relying on my impressions, read much deeper into her opinions on a larger number of cases on a wider number of issues, and consider them in context, before I would wish my impression to be weighed in the public debate. And mind you, I don't have your forum, or your standing; I'm just an ordinary shlub court lawyer with a few decades of practical experience. I'm tempted to suggest that both your posts on this subject show something like the same sort of arrogance shown by the recently-over administration's senior lawyers closest to the recently-departed president, but I fear that such a comment would be unfair without my having performed a truly in-depth review of your posts at this site. Given the significance of the subject matter of your two posts on Judge Sotomayor, I'm sorely tempted to do precisely that and post my findings [all over the place, in hopes of making up your advantage in this soapbox TNR has provided you]. FWIW, and I strongly caution it's worth very little: [1] over the seven cases I reviewed that contained the seven opinions Judge Sotomayor authored, I noted those opinions to be significantly more readable, better reasoned, most sensible, more incisive and indeed more likely to be legally correct than opposing opinions in those cases; [2] over the decades I've practiced in the courts, I have found that attempting to co-relate early impressions on judicial behavior, and indeed judicial behavior itself, assuming such to be always within the bounds of civility, even with judicial temperament, let alone inclination and efficacy, to be an extremely difficult and unreliable exercise. For example, just from listening to the questions and interruptions of counsel before the SCOTUS during the period of time that both Justices Souter and Scalia have been there, one would gather the distinct impression that one of them tended not to suffer foolish propositions to the extent that it sometimes seems he was excoriating the messenger as much as the message; whereas the other tended to blunder forth so often with oversimplified verbal assaults untethered to the case before the court it seems he took great relish in pranking on the immediate effects of that set of laws that, among other things, predicts that shit runs downhill; so I'm sure it would be unfair to judge their respective suitability for their appoointment to the court without going on to read all their opinions*. [* which, incidentally, I, and thousands if not tens of thousands of others, have done; and for myself, I must admit that in those particular instances at least, first impressions are proving quite sticky].

-

May 7, 2009 at 5:12pm

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Nice try at preempting Judge (soon to be Justice) Sotomayor from the left by impugning her intelligence and her "judicial temperament", but, no dice this time. You can say what you want, you're not getting another white liberal Justice on the U.S. Supreme Court. This one is ours, the American Hispanic community, which has waited way too long to get an Hispanic on the U.S. Supreme Court. We may not be as liberal as the liberal wing of the Democratic Party may want us to be, but we are loyal, and you will need us in four years.

- PRuiz

May 7, 2009 at 5:33pm

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Mr. Rosen, if you had in fact read and formed judgments about Sotomayor's rulings (enough to believe that they're "good, but not great"--whatever that means), then why in the original article did you claim that you hadn't and were merely passing on the information received from eminent anonymous sources? Could it be that you were one of your own anonymous sources? And explain to us again how that is supposed to pass as serious journalism?

- Question

May 7, 2009 at 5:37pm

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Strange, the Washington Times managed to find on-the-record sources without too much of a problem. I leave you with two words that come to mind to describe your writing on this: lazy and sloppy.

- Patrick in Chicago

May 7, 2009 at 5:37pm

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"Yale Law" seems to think that "Rosen has apparently retreated entirely" from the claims about Sotomayor not being particularly well-respected intellectually. I think someone needs to learn how to use the scroll function on their Internet browser. If you read further down you might have run across a discussion of her worked encapsulated in phrases like "competent but not especially distinctive," "Her opinions are O.K, by and large," and "not distinguished, but ... perfectly competent." That's not a retreat; it's exactly what the first piece said, unless you're going to pretend you thought comments like "not that smart" meant "I can't believe she finished high school" rather than "not that smart for a potential Supreme Court nominee." As for your assertion that "she has a clear reputation in the real world as one of the intellectual stars of the Second Circuit ... and writes thoughtful, brilliant opinions": It's hard to imagine what "real world" you're talking about. Perhaps the one on MTV. Or a Sotomayor clerkship reunion. At a minimum, your real world appears to exist in an different universe from the one in which the Almanac of the Federal Judiciary gets published. Maybe the Almanac's commenters are all Klansmen.

- Not Yale Law

May 7, 2009 at 5:44pm

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I partially agree with comment #11. I am not sure whether the issue is her being Latina, but it is not clear what Mr. Rosen's objections are, given the sophistry of his arguments. The problem is that the evidence simply does not match the conclusion. Mr. Rosen concludes with this inanity: "given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble." That goes without saying. It appears Mr. Rosen intends to fill out this picture, only he does so using anonymous hearsay, selective quotations and questionable analysis. This is not a way of getting the complete picture. Commentators and analysts provide their opinions based on their own convictions. They need not please everyone. I do not imagine intelligence and temperament are truly what make Mr. Rosen hesitant about Judge Sotomayor... what, then, is it? This response certainly does not provide and answer.

- lw

May 7, 2009 at 5:50pm

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Let me try to put the problems with your article in some "polite" footnotes. 1. by conflating "temperament" with intellect, you might "mislead" a reader into thinking Judge Sotomayor lacks the intellectual heft to sit on the Court. In fact, as anyone who knows her could tell you, she without a doubt has the requisite intellect. 2. You failed to consider the possibility that some of your sources might, for whatever reason, prefer another candidate to the court. At the very least, the article should have included a more balanced account from a source willing to go on the record. 3. Your assessment of the Judge's writing skills lacked context, and may have--again--misled your readers. Most appellate cases hardly lend themselves to lyricism. However, in the cases that do provoke thought and average people care about, Judge Sotomayor has shown herself to be an excellent writer. See, e.g., Hayden v. Pataki. 4. Both of your articles fail to consider that some of the attorney complaints against Sotomayor could themselves be the product of either sexist or anti-Latina sentiment. That is to say, the (mostly white male) attorneys who argue before Sotomayor might react more unfavorably to harsh questioning from Judge Sotomayor than they do from a white male judge. 5. Why would Judge Winter necessarily be right and Judge Sotomayor be wrong? Do you think Justice Thomas agreed with everything Justice Brennan wrote? Does that mean that Thomas was automatically right? I doubt you believe that.

- Rosen wrong

May 7, 2009 at 5:58pm

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What a stunningly inept defense of his initial article. As if the worst problem was a "misleading" headline! Rather, the problem is the headline was too direct, in that it conveyed exactly what Rosen and his malicious gossipers wanted to do with the column, which was defame Sotomayor before anyone could even build serious momentum for her as a pick. Walking back your criticisms to a small degree, while defending the use of anonymous sources as the "only" way to get honest opinion of Sotomayor, is ridiculous. That column was a travesty, this defense is absurd because there can be no defense, and TNR should retract that ridiculous column and seriously reconsider permitting Rosen to write on Supreme Court nominees in the future. Nothing less indicates that they have any desire to correct the mistake they made printing that initial column.

- Alexander Wolfe

May 7, 2009 at 6:01pm

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Apart from issues of bias, there is a threshold level of intelligence and competence that I want to see before I will credit assessments of the intelligence of someone who is operating at a very high level. When I see an illiterate commenter on a blog casting aspersions on Obama's intellectual acuity, I give that assessment zero weight. That is why I, for one, will not credit anonymous assertions about the intelligence of a judge of Sotomayor's stature. I've known enough appellate clerks and AUSAs to know that those credentials alone do not make their possessors capable of rendering credible opinions on the relative intelligence of qualified judges. Even if the assessors were totally unbiased, these anonymous comments simply are not credible and should not have been published. I understand that this argument is probably too subtle for Prof. Rosen, who is clearly intellectually outmatched not just by Greenwald, but by many of the commenters here. My advice to Rosen is to sit back down at the kid's table where be belongs until he does something that would cause the adults to take him seriously. You're out of your weight class, son.

- Rosen's Intellectual Superior

May 7, 2009 at 6:06pm

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As someone who's familiar with Judge Sotomayor's opinion in U.S. v. Samaria, I really enjoyed the comment from "Lawyer" that Samaria is "an absolutely unassailable opinion that adheres closely to precedent." But then I had the disturbing thought that "Lawyer" might not be joking. My apologies to the non-lawyers in the audience for what will seem like impenetrable legal jargon, but let me try to give Lawyer a clue: Samaria prominently and carelessly (I hope; intentionally would be worse) quoted language suggesting that a defendant's "conscious avoidance" of guilty knowledge cannot be used as part of the proof of a charge of conspiracy (or of any other crime that requires proof of intent). Hope that helps. If you really are a lawyer, have read Samaria, and think it's "unassailable," I think we may need to consider tightening up the standards for passing the bar exam.

- Sock Puppet Detector

May 7, 2009 at 6:19pm

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the comment that dismissed a question about her intelligence as "she isn't as smart as a white guy...." huh? How about she isnt' as smart as Miguel Estrada? Or Janice Rogers Brown? Or Clarence Thomas? (which reminds me, is there a dumber person in national politics than Harry Reid?) You should realize by reverting to a simplistic sexism / racism denial, you probably do more harm to your candidate than otherwise.

- Atul SIngh

May 7, 2009 at 6:20pm

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So some lawyers cite the dicta of Judge Sotamayor's opinion as the holding, Judge Winter writes a footnote that he won't interpret the case beyond its holding, and all the sudden Judge Sotamayor is a dumb affirmative action case being corrected by her white male superiors. I would venture to guess that somebody files a brief containing an overbroad or underbroad interpretation of a holding in the 2nd Circuit every single business day. In fact, I'll bet every brief filed in that court contains an interpretation of a case that goes beyond its holding. THAT IS WHAT APPELLATE LAWYERS DO. Judge Winter and Judge Sotamayor have a legal disagreement. And you immediately view it as Judge Sotamayor being incapable of doing her job properly. Interesting.

- Mike

May 7, 2009 at 6:21pm

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"I've just returned from Londonto find that my piece on Sonia Sotomayor has provoked an energetic response in the blogosphere...." *Another* lie, Jeffrey? Aren't you tired from all that tap dancing? Please. You mean, the Internets don't work in the U.K. and Frank Foer didn't alert you to the fact that your hit piece was getting trashed by some people and publications with some pretty serious cred, nowadays? Funny how that works. Or doesn't.

- IncandenzaH

May 7, 2009 at 6:22pm

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I came across the below letter, which I think points to possibly the worst thing Rosen did in his article. While some might be sympathetic to the defense of using anonymous sources, I'd really like to see Rosen explain his blatantly deceitful use of a named source. Why didn't the part of Cabranes' quote where he used the word "smart", make it to Rosen's article? My 2 cents: An example of how it is done From the Rosen article: 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." That is my bolding; is Cabranes really addressing the same point? From the NYT article that Rosen is refers to: "I hope that none of you assumed on Monday that my lack of knowledge of any of the intimate details of your dispute meant that I was not a baseball fan," the judge said yesterday as the hearing began. "You can't grow up in the South Bronx without knowing about baseball." Sotomayor, 40, is the youngest judge in the Southern District of New York. She was the first American of Puerto Rican descent to be appointed to the Federal bench in a city where generations of Puerto Ricans have lived, died and, yes, played baseball. "She's tough and tenacious as well as smart," said Justice Jose A. Cabranes of the United States Court of Appeals for the Second Circuit, a mentor and former professor of Sotomayor's at Yale Law School. "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media." So you see neither the NYT article nor Cabranes was actually addressing the "point" that Rosen wanted to make by using an unnamed source. The idea is to leave the reader with two impressions: 1. that Rosen did quote a named source. 2. that Rosen is bending over backwards to be fair. Both are lies, of course. -- Mike Sulzer [Read Mike Sulzer's other letters] Permalink Tuesday, May 5, 2009 06:43 AM PDT

- Debrose

May 7, 2009 at 6:30pm

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Because she's a she, and a Latina, absolutely no questions may be asked about her? Absolutely bullshit. Thomas' intellectual gravitas was questioned when he was nominated...oh wait...he's black, so we should have kept our mouths shut...Miers was openly ridiculed, even by many conservatives, as a hack...but her vagina made that WAY outta line...

- porkido

May 7, 2009 at 7:18pm

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Don't worry - Hutchinson has responded to Rosen's response. Go to Dissenting Justice.

- Tony Smith

May 7, 2009 at 7:26pm

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Nothing like a half-walk back of poorly sourced gossip. Stay classy Rosen, we all know you prefer Kagan.

- Robert

May 7, 2009 at 7:33pm

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Shorter Rosen: Yeah, that footnote I mentioned doesn't actually suggest that Sotomayor misread the law or misled anyone, but my anonymous friends have assured me that the court was actually writing in a secret code that only they understand and in which they in fact slammed Sotomayor's intellect and competence. So as you can see, no correction is necessary.

- liebig

May 7, 2009 at 7:33pm

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"I look forward to exploring some of the other names on the short list soon." Presumably by getting some more of your drinking buddies to give you some more anonymous pull quotes? Wow, I can't wait.

- Rheinhard

May 7, 2009 at 7:46pm

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Oh dear. She's a woman and Puerto Rican. And she's "difficult." Surprise. This isn't legal journalism. It's not really journalism. But to be fair to Rosen. Many journalists no longer practice journalism, because that would require more effort than simply repeating what anonymous sources say and distorting to the point of remaking a quote that actually supported Sotomayer into a criticism. And then journalists whine about the blogosophere?

-

May 7, 2009 at 7:51pm

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I'm genuinely disappointed that The New Republic would publish an article based on nothing more than the opinions of those who are willing to speak ill of a person, have that opinion published, and never risk speaking up and giving their name. This is not a situation that merits an article solely based on anonymous sources. We're not talking "deep throat" people..just an opinion on a judge.

- crendon

May 7, 2009 at 8:00pm

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Weak. Extremely weak, and not convincing. These (multiple!) "friends" called you weeks ago? That clearly reeks of a pre-emptive strike by anonymous people with a personal agenda. What's more, you purposely and dishonestly left out a very significant part of a fully *attributed* quotation - as opposed to anonymous smears - that was in it's entirety a compliment. Yet in the way you presented that quote, you created the impression that Cabranes was supportive of the point you wanted to make: that Sotomayor was "not that smart and kind of a bully on the bench." You specifically stated it that way in your piece. Yet this was Cabranes quote: "She's tough and tenacious as well as smart," said Justice Jose A. Cabranes of the United States Court of Appeals for the Second Circuit, a mentor and former professor of Sotomayor's at Yale Law School. "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media." If Cabranes is right, then that reads like we have a clear winner for the Supreme Court. It's exactly the kind of judge I would want there.

- Willem van Oranje

May 7, 2009 at 8:10pm

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She is a hispanic woman. Of course temperament is an important consideration. This is laughable. And if people go after her based on this it will only make Obama look better not worse.

- gemini07

May 7, 2009 at 8:11pm

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"....my piece on Sonia Sotomayor has provoked an energetic response in the blogosphere....." Is that a euphemism for "almost universal condemnation", particularly for the shoddy sourcing? Regardless of the perceived fairness of your presentation, isn't a bit early to be getting lathered up over nothing but speculation? This is another example of herd journalism.

- Chris Brown

May 7, 2009 at 8:31pm

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I've read your two TNR pieces and some of the "energetic response in the blogosphere." Counselor, you're losing. However "energetic" they may be, the articles pointing out the shortcomings of your posts are logical, well reasoned, and sourced. Your posts, shall we say, were not. How did Lionel Hutz get through Harvard, Oxford, Yale, and get tenured at GWU?

- Seriously

May 7, 2009 at 8:38pm

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Just bite the bullet and admit you wrote a terrible piece. Everyone has that one article they wish they could take back, for you this was it. Otherwise, I think you just aren't recognizing what an incredibly shoddy bit of journalism that was. Doesn't your integrity mean anything to you? You didn't do your research, you didn't attempt to give a voice to those who admire her, you didn't even look for people who were willing to go on record with their opinions. It was as if you thought the most scurrilous water-cooler gossip had more truth to them than her actual words and deeds. Dude. Even grade school kids know that's wrong.

- bstroup

May 7, 2009 at 9:28pm

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Oh Please, Rosen!! THIS is torture! Give it a rest. It hurts so bad to read your lame justifications.

- PatNC

May 7, 2009 at 10:05pm

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She sounds like she'll do fine with Scalia and Alito on the bench. It would be horrible if the SCOTUS has opinionated, sharp personalities on it. What will we do? This was a week article by a usually strong writer. It seems like a Maureen Dowd column.

- MikeB

May 7, 2009 at 11:04pm

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WRITE YOUR OWN HEADLINES You lazy ____. I have written several thousand articles for all sorts of publications, including two of the largest newspapers in the USA. I began writing my own headlines while I was in my mid-20s -- three or four years after entering the business. Yes, it's true that technically copy editors are responsible for headlines. However, I have found that copy editors accept the headlines I have written as is a majority of the time and with minor adjustments due to space availability well more than 90 percent of the time. Over the years, I have been outraged whenever I hear or read about a reporter complaining that people misconstrued his or her story because of a headline that he or she didn't write. These people are irresponsible babies. Mr. Rosen, write your own g---- headlines and stop whining like a baby that others' reactions to your story is not your fault. IT IS YOUR FAULT because you were too lazy to write a headline. Shalom, ZWrite

- ZWrite

May 7, 2009 at 11:09pm

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Either Jeffrey Rosen or TNR should publish and apology or a retraction of both articles about Judge Sotomayor. Not only does Rosen quote Carbanes out of context (see New Yorker for details...the quote that Rosen spliced was actually praising Sotomayor, not criticizing her), but he also misreads the supposed critical footnote from Judge Winter (see Glenn Greenwald or Professor Darren Hutchinson's blogs for details). All in all, the original article and Rosen's pathetic defense are a disgrace to TNR and Mr. Rosen.

- anthonyj

May 7, 2009 at 11:48pm

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his defense is as dishonest as the original piece. He and the New Republic should be ashamed

- rumi12

May 7, 2009 at 11:55pm

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This article pretends to acknowledge critics but instead ignores most of them. Most of your original article was about Sotomayor's alleged lack of "braininess," but you don't address it at all here. And you do nothing to answer critics who ask why you limited your sources to former law clerks and prosecutors. Law clerks generally are right out of law school and often young, naive and arrogant. The idea that moments after graduation many of these overprivileged innocents are looking down their noses at a judge with decades of experience is stomach-churning; the fact that you took these as "evidence" of Sotomayor's flaws is shameful. As for federal prosecutors, i.e. employees of Bush's Department of Justice, many have had their competence and ethics questioned in the last two years, particularly after the US Attorney firing scandal. Are these the best people to ask? Why didn't you check with civil rights litigators, or commercial lawyers, or federal defenders?

- RB

May 8, 2009 at 12:34am

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"I find it very interesting that Rosen's defense of his original article attacking Judge Sotomayor does not make even the slightest attempt to defend what was by far the most explosive, and frankly the most ridiculous, cluster of smears that appeared in the original article: the shocking, repeated claim that Judge Sotomayor was "not that smart..." Let Judge Sotomayor release her LSAT scores and if they are exceptional, she can easily refute these charges of relative dullness.

- Juan Contango

May 8, 2009 at 1:02am

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Well, given that there have been no nominations, a preemptive strike on Sotomayor implies a stealth agenda, perhaps larger than simply torpedoing a Sotomayor nomination. This attempt to clarify seems to be kinda weaselly, in the vein of the original article. Anonymous smears, before the fact, are, by definition, suspect. Are all your sources willing to testify at the hearing if she is nominated? Are they willing to make their identities and their comments public if she's nominated? If not, then it's just a hack job that should never have hit print.

- montag

May 8, 2009 at 1:24am

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Here's the problem: 1. You say Posner and Easterbrook were not serious candidates for SCOTUS, which is undoubtedly true. So, are you saying that Sotomayor IS a serious candidate and therefore subject to more scrutiny? If so, on what do you base that? The gossip around the water cooler in legal circles? Why is it so absolutely necessary to scrutinize Sotomayor when she HASN'T BEEN NOMINATED, and, so far as we know, may never be nominated? Doesn't this hit piece smack of a preemptive strike? 2. It isn't the criticism of a possible SCOTUS nominee that bothers me so much as the fact that ALL of the criticism is anonymous. This is shoddy, disgraceful journalism. If Rosen can't find even one source that is willing to be named, then maybe he needs to think again about writing such a piece. 2.

- Beej

May 8, 2009 at 2:19am

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If they are "democrats" and "liberal" that makes them legitimate voices in this anonymous smear campaign? "Some of my best friends are _______." Stick to the facts.

- DBB

May 8, 2009 at 3:16am

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I certainly worry about selection bias with Zagat's Guide to Judges.

- Pinko Punko

May 8, 2009 at 4:04am

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As a former 2d Circuit clerk myself who had the opportunity to see a lot of Judge Sotomayor(and as a woman and a liberal, for what that's worth), I totally agree with this column and thank Rosen for having the courage to publish it, despite the inevitable backlash. To those who were put off by the questions about Judge Sotomayor's braininess, I think the point, which perhaps could have been made more clearly, is that this is an absurdly difficult job and calls not just for brains (which obviously she has in abundance) but brilliance (the brilliance needed not just to make competent decisions but to persuade colleagues), which from my experience I would say she lacks.

- expat

May 8, 2009 at 5:45am

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Yes but a lot of legal scholars also argue the occasional case. It would be insane for them to make their comments on the record.

- expat

May 8, 2009 at 5:49am

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The Judge must have made some comment about Israel at one of Marty Peretz's famous Dinner Parties. Hence Rosen's disgusting busllshit attack.

- ebg2465

May 8, 2009 at 9:10am

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The Judge must have made some comment about Israel at one of Marty Peretz's famous Dinner Parties. Hence Rosen's disgusting bullshit attack.

- ebg2465

May 8, 2009 at 9:11am

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What surprises me is that no one has nominated Sotomayor and yet a slew of lawyers and clerks rushed in to tell Rosen what an awful candidate she would make. Now Rosen can waffle all he wants but he engaged in character assassination and his second piece is filled with nonsense. What a brave lot of sources: all anonymous. Says something about the current state of the legal profession: more like legal assassins.

- alan

May 8, 2009 at 9:14am

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I have nothing substantial to add to this argument. I just want to note Rosen's groan-inducing opening sentence: "I returned from London to find my little story had caused quite the dustup," or something to that affect. Not only does he pretend the title-- not the content-- of his first article was the real culprit in his critics' "misunderstandings," but we're supposed to believe that the editor of an online journal doesn't fire up a laptop when he's traveling, that he would have responded sooner, but he was indisposed in the old country? Dude, please.

-

May 8, 2009 at 9:26am

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You, Mr. Rosen, have proven disreputable as a journalist in this instance. It is my recommendation to your management that they find you a less difficult position to fill.

- David

May 8, 2009 at 9:39am

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"On your point about the Almanac comments, I note only that comments about Judges Easterbrook and Posner tend to read exactly like those you've excepted here (particularly with regard to temperament). I don't recall ever reading any article about Posner's or Easterbrook's temperament when their names were mentioned for these vacancies." You misstate the Almanac. Posner's entry on temperament criticizes him as smart-alecky and condescending, not for being nasty. The entry on Easterbrook's temperament is very critical, but Easterbrook has never seriously been considered for the Court -- in part because those who are looped into these things know that he is basically a jerk. And both judges have FAR better comments regarding the quality of their opinions and their writing than Sotomayor. The word that appears repeatedly in their comments is "scholarly." This is not a comment attributed to Sotomayor's opinions (which are deemed "good").

- Bill

May 8, 2009 at 9:51am

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Name your sources and apologize for smearing her reputation .

- pam,s.c.

May 8, 2009 at 10:01am

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At this point the only further thing anyone could add about this that would be of interest is the memo Foer sent Rosen telling him to actually go back and read some of the opinions.

- John Dillinger

May 8, 2009 at 11:11am

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A hit job by a hack, hiding behind anonymous sources, who can not even say he is familiar with her work. Whwer is your defencse of the smear she is stupid? I'm waiting... Glenn G. has shown in exquisite detail how wrong this "author" is. More importantly, it shows very bad American journalism and it's villager ethos and stupidity. Fire this hack. Not everyday does the NYT editorial point out how stupid a writer is, but they have done so for this piece of trash by a terrible "journalist."

- Jon Chinn

May 8, 2009 at 11:28am

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"I haven't read enough of Sotomayor's opinions to have a confident sense of them." 4 May 2009. "I had read enough of her opinions to find them good but not great." 8 May 2009. I repeat - in none of my 32 years in journalism could I have got away with such nonsense. If Mr Rosen was writing about a minor character in a TV show, we could shrug and pass on. He's writing about a possible Supreme Court appointee.

- Pete Maguire

May 8, 2009 at 11:47am

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Eminent enough for Fox News. Chuckled reading the current wikipedia article "Jeffrey Rosen is a gossip columnist posing as an American academic and commentator on legal affairs."

- hoyleysox

May 8, 2009 at 12:03pm

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kit wasn't the title that people found offensive, it was the article you cropped a quote that PRAISED Sotomayor, any you made the quote of praise come across as a complaint about Soromayor's intelligence that's an EPIC FAIL you REVERSED THE MEANING of a fookin quote whay kind of journalist does something that lame and corrupt ??? the rosen type of journalist, = hack propaganda artist, see Gorbelles, nazi germany, lies and facisim that's YOU rosen, a gorbells protege

- freepatriot

May 8, 2009 at 12:07pm

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To "expat, a woman and a Liberal: for what it is worth: well your opinion is worth nothing if you say that people who wish to criticise Judge Sotomayor won't go on the record because they appear before judges. I guess you folks are not all thet brave. Just human, and ready to slash someone as long as you can do it anonymously.

- David

May 8, 2009 at 12:16pm

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There are apparently enough of these naysayers based on his sources and the Almanac to at least make their views relevant and not complete outliers.
This is the nub of the problem, isn't it? "Apparently enough"? What sources? Where's the analysis, the original research into the record, etc? This was a dirty smear job. Luckily, it was ineptly done, and Rosen promptly got called on it.

- Amit Joshi

May 8, 2009 at 1:40pm

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"Anonymous comments aren't ideal, but there was no other way, in this situation, to get people to share candid questions about judicial temperament." Then you shouldn't have written about it.

- Jeff

May 8, 2009 at 2:28pm

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Where were you in London that you had no access to US media? I thought they had the internet and stuff over there.

- jaltcoh.blogspot.com

May 8, 2009 at 2:31pm

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To David: What is this crap about "slashing" someone? What I and others are trying to do is add to a debate that will hopefully influence who gets chosen. This shouldn't be about feelings or being nice; it should be about finding the candidate who has the brilliance and the charm to move the court in a positive direction.

- expat

May 8, 2009 at 2:43pm

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Congrats on making the NYT editorial page today!

- CHD

May 8, 2009 at 2:51pm

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I am not impressed with either the original article or this new justification/apology/reiteration/whatever from Rosen. From what Rosen says in this second installment, it is clear that some group of "scholars" does not want Sotomayor to be chosen, and they both initially contacted Rosen and then also put Rosen in touch with more sources who felt the same way. So many questions are unanswered. Did Rosen's initial "scholar" sources talk to each other? Was this an organized campaign? And if so, did it have any particular motivation (i.e. for example, I am not saying this was the case, but were any of them Harvard "scholars" whose preferred candidate might be Elena Kagan?) I have no idea what anybody's motivations were here, but it seems to me that the weakest point of Rosen's generally weak sourcing is the fact that many of his sources were apparently connected to one another ("They put me in touch with others..."), which certainly opens the possibility of some kind of at least partly organized campaign against this judge. Rosen is far too uncritical about this possibility and in general about the motives of his sources. At least until this incident, TNR had some credibility on stories of this kind, and readers need to know that we are not just being set up by a smear campaign. A bit of independent judgment (reading her opinions for yourself!) would help a lot to fix this problem.

- RJD

May 8, 2009 at 3:19pm

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It's as if Rosen is intentionally blind to the magnitude of his attack. In one anonymously sourced article, relying on prosecutors and former clerks for OTHER JUDGES, he has managed to label Judge Sotomayor "not that smart," when, as a law professor and legal writer with significant influence, the obvious and appropriate way to analyze her intellectual chops for the job is to, ahem, read her opinions. I find that totally irresponsible. Judge Sotomayor is a real person, and this is a tremendously important decision for the president, and for the country. This isn't a time for gossipy mudslinging, and Rosen is capable of providing much more. As is, the damage is done -- the cable news channels and opinionaters have picked up on this characterization and run with it, and all on the basis of the anonymous, conclusory assertions of a bunch of prosecutors and law clerks. (And as a law clerk, I can tell you that we tend to know much less than we assert -- such is the nature of our positions, and of the young and over-praised.) If Rosen's impression from Judge Sotomayor's opinions is that they are not brilliant, he should have simply said that, and perhaps explained why. Then we would know who's opinion it was, and what it was based on, and could weight it accordingly.

- law clerk

May 8, 2009 at 3:47pm

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I am surprised by the vitriol of these comments. No, Rosen did not spend the weeks or months necessary to research and write a feature article. But his methods were fair, thorough enough, and they plainly uncovered enough smoke to indicate the possibilty of a fire. I am a lawyer and a liberal. I have absolutely nothing against Sotomayor -- I have never appeared before her -- and my early impression based on news reports was that she would be an excellent pick. I would like to see more diversity (gender, race, sexual orientation, religion) on the Supreme Court. But I also want Obama to pick Justices that will most effectively move the Court to the left. Why can't we admit that the information Rosen uncovered should give us pause as to Sotomayor's effectiveness? There are other excellent, well-qualified Hispanic women out there; it makes no sense to become so enamored with one of them that we become blind to her faults.

- Carl

May 8, 2009 at 4:54pm

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To elaborate a bit: perhaps my surprise is because, as an NYC lawyer, I routinely rely on the sort of sources Rosen uses for his article -- it's useful to find out as much as possible about the judges one appears before. These sources are usually reliable, if anything, as Rosen says, they tend to be overly positive. They are always anonymous, but, taken as a composite, reasonably accurate. Every judge, by definition, rules against half the lawyers that appear before him or her. And there are a lot of judges out there, including women and ethnic minorities, who are smarter than the lawyers that appear before them. But most do not inspire the sort of criticism that Sotomayor has. So, as I said, there's enough there to give one pause.

- Carl

May 8, 2009 at 5:27pm

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I would have expected to hear about this kind of thing had Easterbrook been on a short list or considered a serious candidate. He's a flat-out jerk at oral arguments that I've observed. The people who hated Posner at oral argument were probably government lawyers arguing immigration cases. Posner has always been probing but completely appropriate at the arguments I've seen (though sometimes a bit snarky, something that also makes his opinions often a rather easy and amusing read), but he really really has a sore spot with the immigration cases that even spills over into his opinions. He utterly trashes the government lawyers and immigration judges in some of them, some of the more brutal benchslapping you'll ever see. If we want another Brennan (and I think that's the ideal liberals should be shooting for), Sotomayor is not going to be it. I suspect Kagan or perhaps Kathleen Sullivan would be better choices.

- Yinka Double Dare

May 8, 2009 at 5:50pm

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another one of those people unwilling to put their name to their mudslinging.

- ignacio Garcia

May 8, 2009 at 6:10pm

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I appreciate the irony and poetic justice. Rosen began by attacking Sotomayor's reputation and now has to defend his own credibility. There is a good reason why gossip is spoken instead of written. Just because Rosen learned his journalism skills from Harvard and Oxford does not mean readers will take him for his word when he describes his anonymous sources are 'eminent.' Enough with anonymous sources in the mainstream media. Its about time someone else got burned like Judith Miller. Look forward to seeing Rosen as a Fox news pundit. He is qualified.

- hoyleysox

May 8, 2009 at 6:34pm

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If this is a description of how the "research" is being done for these articles, then I do not think there should be any more. The Sotomayor piece is still a smear job looking for anything that can be used as justification, rather than a serious assessment of a qualified potential nominee. It is still infected with conscious or unconscious snob-ism if not worse, and to me it read like a conflict was at work before I even knew what that might be. I say enough is enough.

- Michael Lottman

May 8, 2009 at 7:58pm

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Carl - the issue isn't Sotomayor. She may be a good pick, maybe not. I wouldn't be a fan. The issue is what passes for journalism. On an matter of some importance, Rosen's standard of journalism is simply appalling. 4 May 2009. "I haven't read enough of Sotomayor's opinions to have a confident sense of them." 8 May 2009. "I had read enough of her opinions to find them good but not great."

- Pete Maguire

May 8, 2009 at 8:12pm

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The bottom line is that there are lawyers that think she's not that smart. I feel the same way about Justice Stephens and former-Justice Marshall. Unfortunately though, in this whacked-out, liberal-inspired pc orthodoxy we seem to be living in these days, it is totally acceptable for me to say so about Stephens, but not about Marshall or Sotomayor. What a joke. As well educated as you all seem to be, most of the comments at least demonstrate the ability to write in complete sentences, you must realize (at least in that very dark secret spot that you don't show anyone) that the double standard is ridiculous.

- What a joke

May 8, 2009 at 8:53pm

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Jeff Rosen = Partisan Hack

- Jeffery

May 8, 2009 at 9:15pm

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Rosen: "Not all of Sotomayor's lawyers' evaluations in other areas were this negative." That's a nice way to imply that many of them were, without actually saying so. (He was taking about the "She is a terror on the bench..." evaluations from the _Almanac of the Federal Judiciary_.)

- Eric

May 8, 2009 at 10:57pm

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Neither Posner nor Easterbrook were serious Bush SCOTUS candidates. Top conservative judges, but too old. I really don't see what the outrage over this piece is all about. Rosen started out stating that she was widely praised, which coupled with the fact that she's experienced and has a great resume, leads to the natural assumption that she is qualified for the Supreme Court. He then presented the opinions of a few, which were presented as the opinions of a few, that suggest otherwise. There are apparently enough of these naysayers based on his sources and the Almanac to at least make their views relevant and not complete outliers. And yet, the response to this is the Rosen is a racist-sexist-nepotist who's secretly just trying to get Neal Katyal appointed Solicitor General. Get a grip liberal blogosphere. Oh yeah, somebody already said this.

- itzik basman

May 8, 2009 at 11:24pm

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"Glenn G. has shown in exquisite detail how wrong this 'author' is." Glenn...is that you again? I thought you were told to put your socks away...

- Puppetmaster

May 9, 2009 at 12:54am

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Look, he explained that lawyers who have worked with Sotomayor think that she's "not that smart." How is this controversial? Questioning whether a candidate is "smart" enough for public service comes up *all the time.* Remember Palin? Bush? Biden? Heck, even Harriet Miers, kind of. And if you practice in front of a judge -- one whom you already believe has poor temperament -- you simply can't say things on the record. If that's the standard, nobody will ever say anything bad about any judge.

- Aaron

May 9, 2009 at 12:57am

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There was no need for Rosen to spend a month reading opinions and writing a feature article. A day would have done it. Rosen is a law professor. He should have asked his sources for a few opinions they thought illustrated some of Judge Sotomayor's shortcomings as a jurist, and then he also should have called up some of Sotomayor's supporters and asked them for a few opinions that illustrated her strengths. Then he could have read all those opinions and formed an opinion of his own. And then we all would have learned something from his reporting, instead of just reading what felt like an extremely slanted story—almost a hit job—that basically left me wondering who, exactly, is out to smear this particular judge, and why? And why is Rosen mixed up with them?

- law student

May 9, 2009 at 1:22am

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I don't even think you used sources at all. I think you made it up just like Stephen Glass.

- Kelly

May 9, 2009 at 2:42am

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I don't even think you used sources at all. I think you made it up just like Stephen Glass.

- Kelly

May 9, 2009 at 3:25am

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TNR is a rag with a history of plagiarism.

- Carol

May 9, 2009 at 4:29am

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I have been to several oral arguments where Sotomayor was a panel member. She was always unfailing engaged with the cases. She asked questions that showed her interest in the case, and asked pointed questions to both sides. Not all judges are like this. (They have a blank look).

- Jacques

May 9, 2009 at 7:42am

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Carl says: "Why can't we admit that the information Rosen uncovered should give us pause as to Sotomayor's effectiveness?" Well, Carl, that is because Rosen's pieces are not based on sufficiently reliable information or analysis to legitimately raise a red flag about Sotomayor's qualifications for the Supreme Court. The fact that your take-away was that we should be given "pause as to Sotomayor's effectiveness" demonstrates why the piece is irresponsible. Like you, I would like to see more diversity on the Supreme Court, but I am nevertheless agnostic about Judge Sotomayor's qualifications and would not support a judicial candidate simply based on ethnicity or gender. But my independent reaction to Rosen's piece was exactly the same as that of many of the commenters here. The piece struck me as uninformed and tendentious. If one wants to be tendentious, that is fine, but that is all the more reason to be adequately informed.

- dhurtado

May 9, 2009 at 9:18am

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re commenter Bill and Easterbrook/Posner: neither of these men have been seriously considered for a Supreme Court vacancy, for the last 20 years if ever. Despite their prominence, they were both problematic for many reasons, including their temperament. SCT nominees, male and female, in the last 20 years haven't had their judicial temperament discussed because they haven't had that problem. However, nice try at false equivalence.

- Not Bill

May 10, 2009 at 11:56am

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...Read Michael Dorf's blog where he explains where Sotomayor went wrong in Samaria.

- lev

May 10, 2009 at 6:56pm

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This is very much like Rosen's other pieces -- too many words, too little substance. Rosen wants to be a journalist and a scholar, but he's really neither. He chooses unnamed sources, picks and chooses unreliable references (in his other works) and then proceeds to make a point without actually making one.

- Todd

May 11, 2009 at 11:16am

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I think the comments about Sotomayor's opinions continue the discussion, in a slightly more polite way, concerning her capacity for intellectual leadership compared with Justices and other prospective nominees operating at a very high intellectual level. There are, with due respect, a significant number of honors graduates of elite colleges and law schools who, while clearly very smart compared to the general population, college students in general, high achieving law students, etc., are not necessarily standouts at the very highest level--the dozen or two very most capable lawyers of their generation, which is what we are talking about here. Folks like Elana Kagan, Pam Karlan, Martha Minow, Harold Koh, or perhaps someone with distinctive political skills and experience who would bring something very different to the Court, like Govs. Jennifer Granholm or Janet Napolitano (whose intellect and legal abilities I cannot speak to). Or should be, since this appointee will be the senior and assigning liberal Justice for the coming generation, unless Justice Breyer lives and serves forever. The discussion might be improved if we could agree on a list of a dozen or two major opinions by Judge Sotomayor, and by other sitting judges who are potential candidates, which could be openly debated by those in a position to make informed assessments. None of this is intended to make any premature assumptions about how a well-debated assessment of any particular candidate's (including Judge Sotomayor's) work would turn out. I do think such a debate woould be more constructive than sniping back and forth, with unsupported accusations in both directions, concerning a potential appointee's demographic (gender, race, ethnicity, sexual orientation) status as the dominant feature in her/his qualifications for appointment.

- The Wise Bard

May 11, 2009 at 12:04pm

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Martha Minow. Pam Karlan. Elena Kagan. Harold Koh. Merrick Garland. Seth Waxman. Robert Post. Cass Sunstein. How's that to start?

- The Wise Bard

May 11, 2009 at 12:08pm

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This really is silly. A huge proportion of journalism--both the crap, and much of the best and most illuminating--relies on unnamed sources. While I, like many critics (e.g., of NY Times piece on McCain & lobbyist), argue for stringent journalistic oversight/peer critique of abuses of unnamed sources, I don't think any responsible critic believes important journalism could do its job entirely without them. And there is no getting around this reality in asking lawyers to comment candidly on sitting judges/potential Justices. Perhaps more academics should comment publicly. A few do, although mostly they tend to be strong advocates or adversaries/critics, rather than folks offering balanced and nuanced assessments. It does seem to me problematic to discuss whether a potential nominee is "qualified" to be a Supreme Court Justice. We are, or should be, looking for the very very best (in multiple senses) in a learned profession. Sometimes, of course, that is a joke, as in the case of Clarence Thomas (recall comments of Bush Senior), as well as many others named to the bench over a long, and not always distinguished, history. But let's try to move toward a more informed debate, based on something beyond whether a potential nominee qualifies as a twofer or threefer.

- The Wise Bard

May 11, 2009 at 12:20pm

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Here is at least one commentator who believes that Thomas was a clear disaster, Scalia was deeply problematic (although not for lack of intellect--but rather lack of candor, vision, human sympathy), and O'Connor was among relatively few plausible candidates acceptable to a very conservative President determined to name the first woman to the Court, but hardly distinguished (at the time of her appointment) compared to many women who might have been considered and appointed at the time by a more liberal President. Recall that Jimmy Carter had no Supreme Court appointments, and there were no appointing Democratic Presidents over the full generation between LBJ (who could and should have named a woman Justice) and Clinton (who did, in his first appointment).

- The Wise Bard

May 11, 2009 at 12:28pm

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I think temperament, in the sense commented upon in the original Rosen piece and here, should not be high on the list of priorities in the naming of a Supreme Court Justice. In particular, it should not be confused/conflated with issues of being well prepared and asking tough and incisive comments at argument. There are, of course, Justices who seem to get off on badgering and humiliating lawyers before them (often because of the clients and positions they are there to represent, not because of ill-preparedness or poor performance)--we could do with less of that, although it seems to me (as a non-litigator) more a venial than a mortal sin (right, Justice Scalia?) There are other respects in which a judicious temperament--rather than shooting off one's mouth with ideological rants on matters either before or likely to come before the Court (right, Justices Scalia and Thomas?)--is more important to the job, and in earning and maintaining public and professional respect for the institution. It is difficult to assess from Rosen's reporting whether serious questions have been raised about these more relevant and significant aspects of Judge Sotomayor's judicial temperament. I am not so far convinced that these particular anonymous remarks desrve the attention he has given them.

- The Wise Bard

May 11, 2009 at 12:40pm

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Is this a qualification for an appointment to the Supreme Court?

- The Wise Bard

May 11, 2009 at 12:59pm

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Anyone reading Sotomayor's opinion in Bartlett v. New York State Board of Law Examiners, 93 Civ. 4986 has to walk away doubting her intellectual acumen and common sense. In this notorious decision, Sotomayor argued that a severely dyslexic and basically illiterate aspiring lawyer is entitled to special accomodations when taking the bar exam for the sixth time under the Disability Act. Furthermore, the illiterate aspiring lawyer is entitled to compensation for having failed the exam five times. A more reality-based observer might argue that the ability to read is a job requirement for a lawyer.

- Joshua

May 11, 2009 at 3:50pm

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Sorry about that, folks. I thought the "responds" were to individual messages and would be placed adjacent to them, so I didn't provide additional context or names. Must be visiting too many sites and mixing up their procedures. I hope most of the comments immediately above are at least somewhat intelligible on their own.

- The Wise Bard

May 11, 2009 at 7:41pm

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To Joshua - what exactly do you take issue you with? The Second Circuit ultimately agreed with Sotomayor's primary conclusion: that the plaintiff was smong those Congress provided protection for under the ADA and Rehabilitation Act. The key is that the plaintiff was permitted to have the opportunity to take the exmination on a level playing field with other applicants. You also cannot blame Sotomayor for awarding damages because, as the Second Circuit confirmed, if you qualify under the law then you are entitled to damages. You may not agree with the policy behind the law of damages under the disability act, you must however admit that Sotomayor did follow the law in most respects. It seems like you would prefer a rule of law where the judge can depart from what the law requires whenever the judge believes that's warranted. While I believe judges need to be more realistic, they have to do so within the confines of the law. In the Bartlett case, Sotomayor followed the law and, for the most part, was affirmed by the Second Circuit.

- Todd

May 12, 2009 at 11:58am

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Shameful .

- pam,s.c.

May 14, 2009 at 4:29pm

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Amazing. The original deliberate hatchet-job story has been rightly criticized, the Rosen "follows-up" with this deliberately deceitful "response" to his critics - and then, nothing? The editors at TNR really don't care that this is blatantly dishonest? I mean, I get what's going on here - for reasons we'll never know, Rosen had an axe to grind or purpose to achieve, and he used the original unethical column to achieve it - whether he knew what title would be slapped-upon it is a red herring - it's obvious he was creating a piece for the anti-Sotomayor echo-chamber to quote over and over until it became the understood truth. Then, this article is propped-up, not directly refuting the statements in the original arguments (ala Sotomayor's intellingence), and for the following reason: Anti-Sotomayor person says "There's an article on TNR that says Sotomayor is snippy, not smart, doesn't have the decorum to sit on the SCOTUS"... reasonable person replies (and rightly so) - "but that article has been completely & totally debunked and filleted as the horrid pathetic bit of meaningless nonsense that it is!" Anti-Sotomayor person comes back with "and the author followed up with an answer to his critics", which while true does nothing to say that Rosen did so _reasonably_. But, Rosen and the counter-Sotomayor crowd won't care. Like other pure BS articles, this is now "out there", and people will use it - even if doing so is with deliberate disingenuousness (like Rosen's). Or, perhaps the damage has been already done, and Sotomayor has already been removed from consideration. If that is even the tiniest of true, I congratulate you, Rosen, and TNR on your collective successful deliberate dishonesty. That anyone gives you any credence in the future on any issue whatsoever is just sad...

- TJ

May 20, 2009 at 9:05pm

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Your article is so typical Mr. Rosen. The Spanish Inquistion is in the past. You don't need to fear Hispanics taking positions of power.

- Joseph, S.D.

May 26, 2009 at 3:19am

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Thhis journal cheer led us into Iraq. Now it is playing footsie with the loony right all over again.

- Kabindra

May 26, 2009 at 9:34am

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You raise an excellent point. The comments about her intelligence did strike me as a bit harsh.Why wasn't it addressed in this piece as well?

- ryan

May 26, 2009 at 10:02am

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OK, I admit I went to a non-Ivy League (or similar calibre- Stanford, Northwestern, Duke, etc.) law school (Emory Univ. Law, not Yale Law, but still top 25!), but I have one question- WHERE ARE THE CASE CITATIONS TO BACK UP THE ARGUMENTS? If Sotomayor is a boob, give us the case cites. If she's the second coming of John (NOT thurgood) Marshall, ditto.

- Loridans

May 26, 2009 at 10:46am

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Sound the alarmist bells. Angry brown woman in the building. Why didn't you just call her uppity and write your article?

- Angela

May 26, 2009 at 4:15pm

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Hmmm. This, and the initial article by Rosen, sure read like axe-grinding to me. What gives, Jeff? You are normally a sane and thorough author. You mad that Sotomayor was summa from Princeton with Yale Law, and will (baring some strange event) be a Supreme, whilst you were summa Harvard + Yale Law, and even have an Oxford shiny on the wall, but are stuck teaching and typing for TNR? I don't get it...

- Bob The Builder

May 26, 2009 at 8:17pm

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'bama on Clarence Thomas: "I don't think that he was a strong enough jurist or legal thinker at the time for that elevation." No problem if you diss a person of color's intellect if she's conservative--actually, it's cool with most in the national press. But allah forbid if you diss a person of color if she's a liberal. Jeff, you will NEVER EVER be forgiven for the airing of former law clerks, etc. questioning Sonia's intellect. You must go the way of Wanda Sykes and play the obsequious jester, speaking lies to power..

- dawg

May 26, 2009 at 11:35pm

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I just read the two original pieces and all of the comments. Anonymous sources are necessary if Americans want quality news, but I have to agree with a number of very strong points made by Mr. Rosen's detractors. If the problem is that she is not "smart," then surely some tenure-protected law professors would be willing to say so, and there surely there would be an ample paper trail of poorly reasoned opinions. By not applying a more rigorous standard in use of sources and in independent analysis, Mr. Rosen has left himself open to charges of, at best, favoritism, and, at worst, sexism and/or racism.

- Bill Dawers

May 27, 2009 at 8:14am

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Mr. Rosen, welcome to the not so tender mercies of the fascist left wing of the US. The failure to actually teach our young people how the monsters like the Third Reich, Mussolini, Stalin, Lenin, Mao, Castro and so many others came to power (by demonizing, dehumanizing, censoring, bullying) character assassination perpetuated against anyone who dared to express reasonable concerns, well it's not surprising that they are so willing to embrace the same practices.

- Jenny

May 27, 2009 at 10:51am

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NotJefferyRosen, You sound a lot like the conservative Bill Kristol? According to NPR Jeffery Rosen is "center-left". Therefore, if you are not Jeffery Rosen but sound like Bill Kristol would that make you John King?

- princeofnonsense

May 27, 2009 at 11:29pm

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I cannot wait for the announcement: Coming up next on Fox: Dream Team Panel of Rosen on the left, Judith Miller of the "liberal" NY Times (full time analyst), and the admirable "conservative" Charles Krauthamer. Congrats, Jeff. How does it feel? I doubt you feel anything, hack, as a member of the lucky-sperm-club access is all one needs.....

- jeff nepotism

May 27, 2009 at 11:38pm

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This is written in plain bad 2nd grade English just for the ones who are reading it. This I am sure fits your intellect. When Rush Limbo the drug addict, Newt the racist, Beck the liar, Tancredo the bigot and where racism, contempt and bigotry is mentioned by the same breath along with the presenting of so called journalism views just shows the world how disgraceful you so called humans along with the entire "gop" and people such yourselves thinks that you’ve made a point. By the way you all always do. “The point is H A T E for anyone whose intellect if way beyond your reach. You Idiots have belittled yourselves to the world. The ounce of brains that you claim to have, has proven yourselves to be gutter sewage in which you minds entertain your so called peanut brain. You hateful people are a lump of vomit in society and your diarrhea wrenches the world with nasty low down wrench of disgusting arrogance. If anyone in the world has ever had an ounce of respect for you people, the finally found out what is actually under the hood you’ve carried throughout life.

- jan

May 29, 2009 at 12:29am

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What's really interesting about all this is that in attacking the prowess of a latina nominee on the basis of the anonymous comments which are nothing but derivative sentiments of white privilege, Jeffrey Rosen permanently sacrifices so very much credibility. I see white men tear down "others" all the time, but never do I see them suffer for it so deliciously. The world's not fair, but at least it's getting there.

- Jeff Rosen, self-immolator

May 29, 2009 at 7:39am

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What incredible nonsense. He made it all up! He made it up because he wanted his brother to benefit. He wants Solicitor-General Kagan, not Sotomayor, so his brother, the deputy solicitor-general, can move up the greasy pole! Name names, Rosen! Prove me wrong! Or else, you're just a goddam grafting little bastard

- A Doubter

May 29, 2009 at 7:50pm

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"As a former 2d Circuit clerk myself who had the opportunity to see a lot of Judge Sotomayor" Prove it! Your name, please! Otherwise, the conclusion must be that you are full of it!

- Anti-expat

May 29, 2009 at 8:06pm

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Posner and easterbrook are that smart? Not really, just mean spirited, having a tourette's version of a large vocabulary and a penchant for lying about the facts of a case to get a result they like.

- stevelaudig

May 30, 2009 at 8:16am

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Rosen: You are an irresponsible and half-baked,know-nothing and so-called journalist. Your irresponsible resporting regarding the Honorable Sotomayor is not worth expending many words in a written response. I therefore challenge your article and you in public. A televised debate between a man like me and a boy like you. Jesus Clemente, Esquire

- Jesus Clemente, Esquire

June 9, 2009 at 7:58pm

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