POLITICS MAY 8, 2009
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.