The New Republic

principals

- teplukhin2you

May 29, 2009 at 2:50pm

Agree.  I too noticed that the NYT did the *same* story today in a bevy of critical reportage about the pick -- after the previous day's glowing coverage.

But, why do you think the Rosen article was published "much too hastily"?  It was before the pick, yes, but the NYT reported that Obama's people had heard the criticism and chased it down.  They were evidently satisfied that it didn't pose a big enough problem, if any, but if Rosen's piece helped the WH gain information about a potential pick that might have otherwise not been on the radar, then that's really good, isn't it?

(I'm a liberal who is neither opposed to nor enthusiastic about Sotomayor, but her temperament certainly bears on one of the reasons given for appointing a moderate pragmatist as opposed to a more liberal choice -- that is, an ability to sway Kennedy and otherwise command the respect of her fellow justices, etc. -- and inveighing against unnamed sources sounds like a Palin-esque change of subject to me.)

- jhildner

May 29, 2009 at 2:51pm

one former clerk

Her former clerks

some of her Second Circuit colleagues

range of people

former law clerks

one former Second Circuit clerk

former prosecutors

former clerks for other judges

one former clerk for another judge

All of them nameless. It is self-serving for anyone at The New Republic to claim that Rosen's article was anything other than nasty gossip.

- ndmackenzie

May 29, 2009 at 2:53pm

Oh Jonathan -- two wrongs do not make a right.

- WoodyBombay

May 29, 2009 at 2:58pm

JC - I have yet to disagree with you about anything, so this is a first.

"Unsurprisingly, they declined to put their names on the record, but that's utterly standard for people who are speaking in unflattering terms about people they worked with or for."

It may be standard for people to not want their name attached to gossip about the boss, but it is now standard to print these musings in a highly respected political journal?  

If these sources don't want to be on the record, then don't print their statements, its not like they are complaining about her cooking. They attacked a potential SC nominee for her intelligence and  temperment, these are very harsh, very vague, often subjective assessments. I don't understand why backing them up responsibly is so controversial.  

Look, I'm not exactly Ben Bradlee and I think Rosen is an exceptionally smart guy, but he wrote a poorly reported hatchet job.  If I were Sotomayor, I'd field dress him at the next DC cocktail party.

- Wandreycer1

May 29, 2009 at 3:03pm

But Wandrey, we wouldn't get any information that people are reluctant to disclose if it had to undergo your standard of "responsible" reporting.  Speaking of Ben Bradlee, Woodward and Bernstein's breaking of various facets of the Watergate scandal relied heavily on sources who would never go on the record in a million years and were reluctant to even speak off the record.  Predictably, Nixon's people made references to unattributed facts and so forth in an effort to disparage the stories, just as Palin made a habit of deflecting criticism by atttributing it to unnamed sources.  The fact that it is a serious issue is all the more reason not to withhold it, because otherwise you're missing out on a relevant piece of the picture.  If you don't trust Rosen, and think that he is just puffing up a couple of grudges and is too dumb to see that or too eager to break a story to admit that, then, well, you don't trust Rosen.  My guess is that he was more careful and serious than that in his approach.

- jhildner

May 29, 2009 at 3:19pm

I agree that Rosen was not reporting gossip. But you write:

"He spoke first-hand with several of Sotomayor's former clerks, who provided a mixed picture."

That is only half true. Rosen did speak with several of  Sotomayor's former clerks. He wrote, "Sotomayor's former clerks sing her praises as a demanding but thoughtful boss whose personal experiences have given her a commitment to legal fairness." And then he provided extensive positive quotes from one and heartwarming details from a few more of those clerks.

But in reporting "The Case Against Sotomayor" (the title of his piece), Rosen relies exclusively on, in his words, "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." None of the negative opinions Rosen reports come from Sotomayor's former clerks.

In Rosen's sixth and seventh grafs, he uses the term "former clerks", and not "former clerks for other judges", and these instances could be considered vague. But my reading of those two citations is that he is simply shortening up his wording, but definitely still referring to "former clerks for other judges".

-AL

- a_long

May 29, 2009 at 3:42pm

jhildner,

You can't compare Rosen's sloppy piece to Watergate, that shows a remarkable lack of perspective. Using anon sourcing to outline criminal conduct in the Oval Office is on a slightly different plane than "She's a big meanie and a dum-dum too!" It's like comparing Sotomayor to David Duke (which apparently Limbaugh did).

- WoodyBombay

May 29, 2009 at 3:43pm

JH - I recall Ben Bradlee's criteria for printing accusations in the Watergate story differently.  He didn't require one source for each accusation - he required three.  A criminal conspiracy hatched in the President's office is not on par with personality differences in an institutional setting like this, but when accusations are leaked out in this egregious manner, yes - it is that bad to me.  We lower these standards at our peril.  The death of objectivity indeed.

I have no attachment either way to Rosen or Sotomayer.  I like his work and I don't know her work yet.

I agree that unattributed accusations have always been part of reporting and always will be  Where would we be without Deep Throat? But it is up to me - the reader, not the writer -  to decide whether the sources quoted were credible and in this case, I did not.  A reporter complaining about being called on unattributed sources sounds like a reporter that feels too entitled to report anymore.

If these clerks thought Sotomayor's temperment and intelligence were that wanting to the Republic, they should have had the integrity to do so in daylight, otherwise - how can I know what their motives are?

How do we know if one or any of these people have personal vendettas?  How can we decide that when the paper never gave me a chance to decide on my own?  

Bottom line, Rosen was thinking for me - "trust me, these people are credible."  Um, no. I don't like that in my reporters. I'll decide for myself whether they are credible or not, thanks.  Whether I trust Rosen or not is irrelevant.

- Wandreycer1

May 29, 2009 at 4:03pm

The day Sotomayor was picked, newspapers (and TNR) ran it as a story before it was announced.  This was all based on one anonymous official.  Look back over TNR's articles, or newspaper articles, and this kind of sourcing holds for almost all reports of dynamics inside the White House or yet-to-be-announced decisions yet they don't get called 'gossip'.  Rosen had far more sources than is usual, but gets attacked on his sourcing.  There's a pretty obvious cause of this clear double standard

- Simon Greenwood

May 29, 2009 at 4:30pm

Wandrey, the three-source rule applied to off-the-record sources.  All of their breakthroughs were based on unnamed sources.  (I'm not talking about Deep Throat, who wasn't used in the stories at all.)  The fact that they were off the record is one of the reasons he wanted three sources.  I think Rosen had more than three.

Anyway, obviously I'm not suggesting that Watergate and a behind-the-scenes story about Sotomayor's temperament and, to a limited extent, legal approach are of equal importance.  Where would you draw the line?  How important does a story have to be before we decide that it's okay to rely on unnamed sources.  Before, you seemed to suggest that the accusation was *too* serious to do that, so which is it?

If a_long is correct that Rosen obscured the fact that the critical sources were former clerks of *other* judges and not Sotomayor, then I agree that that is "sloppy."  As for your ability to judge, I think you've already done that based on the facts reported.  You've decided that there is a strong possibility that these other clerks have some sort of ax to grind.  Maybe, or maybe they have a point.  We've heard some elaboration on the theme, including from the NYT piece today that quotes lawyers who have some bad things to say about appearing before her and notes that she has taken a hit in annonymous lawyers' ratings lately.

It's not a hatchet job because it's negative, and negative views aren't *necessarily* sour grapes.  I trust the on-the-record praise about as much as -- maybe less --  I trust the off-the-record criticism.  In any event, I prefer the whole picture, and not just sanitized bullshit.  One person in the NYT story said that the reaction of some critical attorneys was sexist.  Once again, maybe, maybe not.  I do not find it rude, or something, when we're talking about so important an appointment to explore the point, especially when, as I said, her temperament is relevant.  Will she play well with Kennedy et al?  We're told yes, and that that is one of the compensations for not picking a liberal.  Well, suppose that's not true?  Then where's my compensation?  So, no, it's not Watergate, but it's not nothing either, and if we were to follow the Wandrey sourcing rule, and if officials are careful about what they say on the record (as they are of course), we might as well have a state-run media or just print news releases.  Indeed, the reporting we do get all too often resembles just that.  

So, sorry, if you want something resembling the truth, you will have to put a little trust in reporters, their professionalism, and their publication's standards and record.  Of course, no publication's record is perfect, and we all know that goes for TNR too, but I for one bet that Rosen is a serious  professional, as opposed to a reckless gossip-monger, and that *is* relevant.

- jhildner

May 29, 2009 at 4:50pm

Ok Simon, since I'm taking the High Dungeon role, I'll look back at some things (Hillary articles come to mind) and see if I'm being unfair.  I really have no attachment to Sotomayor, I just thought the sniping about her intelligence was shocking.  

Did the crazies call Bork, Scalia, et all stupid?  I know they were devils, etc, but were they stupid? Not sure what that one bugs me so.  

- Wandreycer1

May 29, 2009 at 5:00pm

OK JH - You make a good case, but I'm afraid trust me isn't enough in these charges.  For me.

I hate bringing up this stuff, but you have to realize that unsourced complaining about her temperment stinks to high heaven of sexism.  Is it?  I don't know, probably some of it - but it is what it is.

- Wandreycer1

May 29, 2009 at 5:07pm

Yeah, I'm with jhildner on this one.  I like Sotomayor, but questions about her intellectual chops and her personality on the bench are fair.  And it's certainly conceivable that people could have questions about her suitability but feel intimidated by the idea of publicly going against a possible future Supreme Court justice.  Given the importance of any appointment to the Supreme Court, it makes sense to air those concerns.   I'm all for multiple, on-the-record sources, but sometimes those are impossible to get.  I'd rather reporters bring out this sort of stuff and let me judge it for myself, rather than hiding it from scrutiny based on some idea of journalistic chivalry.   That may be in the interest of journalism, but it's not in the PUBLIC interest.

My sense is that Rosen's report was rather slapdash and certainly incomplete.  I'd rather he put together a real article examined both the anonymous complaints and their on-the-record opposition in a critical manner.  So that's a demerit to him.  But that doesn't mean he was completely off-base in making this stuff public.

- ratnerstar

May 29, 2009 at 5:09pm

Rosen may not have come under such criticism for his Sotomayor drive-by if he hadn't demonstrated such breathtakingly poor judgment about John Roberts. He gobbled up the Bush admin/conservative spin on Roberts like my lab gobbles up dog cookies.

- WoodyBombay

May 29, 2009 at 5:09pm

" You've decided that there is a strong possibility that these other clerks have some sort of ax to grind.  Maybe, or maybe they have a point."

I'm not sure I'd go this far.  I just wanted to make the choice myself.

- Wandreycer1

May 29, 2009 at 5:11pm

Rat - sure the questions are fair, absolutely.  That wasn't my problem with the article.

- Wandreycer1

May 29, 2009 at 5:15pm

wand- Of course not.  But if the questions are fair, and the concerns are being raised, shouldn't the public have the right to know even if nobody has the courage to put their name on the line?  

I guess my personal bias is towards getting as much raw data into the public sphere as possible, and then having smart, qualified people interpret it.   The problem I have with Rosen's piece is the interpretation part, which was lacking.  

- ratnerstar

May 29, 2009 at 5:51pm

jill - "high duNgeon"? methinks you've been reading too much wmyard of late...

- teplukhin2you

May 29, 2009 at 6:46pm

Talk about basing things on 'feelings' and subjective reaction!  Cutting lawyers off, barking questions and being aggressive in an argument have little to do with "judicial temperament."   Temperament is the ability to hear and judge the facts, weigh them as objectively as possible, and come to a rational opinion about the case.  Judge Sotomayor, under this description, is fairly conservative - and slow-moving to overturn precedent.  An 'intemperate' judge is one who swings wildly in his or her opinions, or doesn't review the entire case before making a judgement, or bases decisions on politics.  It has nothing to do with being out-going or vocal.

Please!  Most SC justices make their decision about a case before the oral arguments.  Cutting lawyers off to get the essence of the remaining questions in his or her mind is not only normal for judges but necessary to keep the court agenda moving.  No one accuses Sotomayor of not being prepared: she knows the questions she needs to ask to either  confirm or negate her interpretation of briefs. Why waste time with underbrush.

Once again, the media buys into this tripe.  Lawyers hate to be cut off but it happens every day.  Just rewind Gore vs. State of Florida for an object lesson.  I hardly think the personality of Judge Sotomayor, although perhaps grating to some, has hindered her SEVENTEEN YEARS on the appeals bench.

The content of the Rosen or NYT articles are secondary.  The real question is why they follow a non-story in the first place?

- CAMtwo

May 29, 2009 at 7:49pm

Yo Tepster - HA!

- Wandreycer1

May 29, 2009 at 8:44pm

I'd agree with most everything Chait stated.  While Rosen might have been able to avoid the attempted pile-on by others had he written it with more clarity, many of his critics in the media and elsewhere have come off as blowing mostly hot air.(And no, Wandrey, that doesn't include you in that group, as I think your reservations have some merit)

I read Greenwald's article and to be fair to him, he did go into great detail to give readers unfamiliar with court hearing procedure an understanding of how Sotomayor, like many judges, can be sticklers and very demanding on matters that other judges might not place a priority on.  Anyone who's spent time with two or more judges can certainly relate with that.  Greenwald's heavy-handed criticism of Rosen went way over the top, in my view anyway, when he wrote that Rosen would have known better had he just read the work of another Salon.com writer.  Unfortunately, the Salon colleague Greenwald cites has offered up so many hack pieces that all too often are way short on facts and overloaded with personal attacks and character assassinations, so much of Greenwald's condemnation of Rosen's work becomes pretty hard to take seriously right there.  If Greenwald truly wanted the bar to be set somewhere above "gossip" journalism, he'd have a little more credibility if he'd pay some more attention to cleaning up a little bit more of Salon's back yard before attempting to define Rosen's work as that of a hack carrying water for any and all opponents to Sotomayor,

A person doesn't have to read that many articles written by people schooled in the area of law to gain an understanding that just because they title a piece as..."THE CASE FOR..." or "AN ARGUMENT AGAINST" that just because the article has that title doesn't necessarily mean that it's author holds the core thesis of the article as his or her personal convictions.  Half of the writers on the Findlaw.com commentary will phrase their entire articles in a manner so that the reader cannot pinpoint what the author's personal feelings toward the person in question or subject matter being debated actually are.  However, there's always going to be people that can't interpret that objectively from the reading and jump the gun assuming the author must have some hidden agenda or motive.  Rosen's piece, followed by much of the subjective name calling, foaming-at-the-mouth rants against his work, and absurdly even Rosen himself, is just the latest example of that fact.  

- fultimr

May 29, 2009 at 11:01pm

The problem here is that if I went and told Yglesias that some people said that Sotomeyer was stupid, I would be engaged in gossip. You see Jeff didn't either name his sources or provide extra evidence for this view. So I would just be passing on heresay. The problem is that that seems to have been the point of the article. To start the gossip chain. I can imagine important people in Washington talking at their parties about how they heard Sotomayor isn't smart enough. It really was a horrible thing to write without evidence, especially without bothering to read her opinions yourself or to find hard evidence. She was 2nd in her class at Princeton which seems pretty good to me. So replace the word Gossip with:

"Some people told me in the hallway yesterday that Chait has a small dick. These people are in his Gym class so they would probably know. I haven't had the chance to check out his pecker yet so I am going to withold judgement. Oh and he seems like a nice guy so you should date him anyway."

- CraigMcGil

May 30, 2009 at 1:00am

I made the same point that Jeffrey Rosen was not channeling gossip, Jonathan. Excellent posts, jhildner, on an otherwise dismal thread. Mr. Rosen did not fall for the spin of the Bush administration; he read opinions by John Roberts and formed his own judgment. I recall one opinion in which Roberts rebuked a couple of his conservative colleagues for judicial activism (on the DC Court of appeals) and for obtaining their desired political results. Only ideologues "know" all of the answers in advance.

- liberal reformer

May 30, 2009 at 1:04am

Wandrey, well I understand that males' criticizing a tough female authority figure fits a common story of sexism, and I agree that when you have those facts, then you're likely to regard that story as a plausible one.  But I don't think that makes all such criticism presumptively sexist; that would give female authority figures a free pass, which, I assume you'd agree, isn't right either.  Like I said, maybe, maybe not.  I have encountered tough female authority figures in my career (including judges) and have great respect and admiration for some and less for others, just as I've encountered numerous male assholes.  (The profession has a few!)

My experience, which is hardly vast I admit, is that lawyers appreciate a tough judge they regard as fair and reasonable -- even if they lose, and even if the judge is brusque or doesn't have a sunny disposition or asks a lot of hard questions -- but will react with pointed negativity when they perceive that they're getting shafted -- that the judge is not fair and reasonable, unwilling to hear your case or understand it, misses your point, doesn't consider your point, acts as though he or she takes something personally, displays head-scratching cluelessness, or otherwise behaves unprofessionally -- none of which is good, either for you or for the system.  That's the sort of thing, I bet, that earns judges less than high rankings in the bar association surveys (which are taken by men and women, of course).  When lawyers ask around about a judge they're about to face, that's the kind of thing they want to know.  In addition to the judge's disposition in cases like yours, if you can figure that out, you want to know, does she -- and I say "she" because we're talking about Sotomayor -- know her stuff, and will she give me a fair shake?

No, female judges don't have to be sweethearts to earn male respect, and they obviously shouldn't have to be, and I know absolutely nothing about Sotomayor other than what I've read in the paper, and TNR.  Her highly accomplished record -- at the (almost) very top of the profession -- certainly weighs heavily in her favor on the professionalism front, I regard her breadth of experience (I mean professionally, as opposed to her "incredible story," etc.), as very positive things that Supreme Court nominees often lack, and the accusations could be unfair and grounded in sexist attitudes or ulterior motives and so forth, or not.  Moreover, I admit that I'm sympathetic to the argument that, so long as we're satisfied that she's smart -- and I am -- then the temperament issue is largely beside the point.  I'm frankly more concerned that she may not vote to uphold Roe when the next time comes around.  In any event, like I said, I've been hearing a lot about the theory that she, unlike, say, a more liberal type after my own heart, will be a forceful and persuasive presence on the Court and be able to move it, in the occasional key case, in the right direction where the liberal, even assuming the liberal could get confirmed, would not.  This temperament point comes into play there, and so I regard it as relevant.  In any event, I look forward to a total farce of a confirmation hearing that will reveal nothing important and almost always miss the point.  Cheers, as always!

- jhildner

May 30, 2009 at 2:20am

I'm one of those unenthusiastic but respectful liberals too JH.  I too look forward to the whole silly parade at the hearings.

Someone can be called a royal pain in the tuckus and be a female judge at the same time without it being sexist.  You just need context to decide. This is the last time I beat this horse but, say it was G Gordon Liddy who gave those quotes about her intelligence versus say Alan Alda?  I know that's ridiculous, but I'm sure you get it.

To Liddy's credit, he'd never hide!

BTW - Rosen has good friends in Mr Chait and the rest of the TNR crew here, they defended him well.  Its always a pleasure to read and speak with you JH, you're an amazing writer.

- Wandreycer1

May 30, 2009 at 6:01am

This really is a dead horse that we are beating, because Rosen's piece is beginning to become irrelevant, except that it continues to be cited by conservative pundits for the proposition that even the liberal Jeffry Rosen and/or New Republic say Judge Sotomayor has a bad temperament and is not very smart.

I can't say that Rosen intended that result, but he had to know that it would happen.  If he had not titled the piece "The Case Against Sotomayor" (which he didn't write but certainly could have objected to), and had simply reported what he was told (both good and bad) by his anonymous sources, while acknowledging (as he did) that he had not talked to enough people or read enough of her work to draw any conclusions about her temperament or intelligence, then that migh have been fine (although one wonders, then, what would have been the point of publishing the article).  But the thrust of his piece (independently of the title) was that there was potentially a big problem with Sotomayor and that Obama should take a very close look before nominating her.  There really was no adequate foundation for such a warning to Obama.

It's not so much that Rosen's sources were anonymous, but that, as Rosen admitted, he did not survey a sufficient sample to draw any meaningful conclusions.  But even as to the use of anonymous sources, they should be used only when necessary, and there should be an effort to corrobarate them with independent investigation.  (To the best my recollection, Bernstein and Woodward did not rely solely on a few anonymous sources, but conducted a thorough independent investigation.)  Anonymous sources are a double-edged sword -- while they can encourage people to talk who otherwise would fear retribution of some kind, it can also make people feel free to lie if they have an agenda.  And Judge Sotomayor's judicial temperament is not so sensitive an issue that Rosen could not have found practitioners who would not insist on anonimity.

As to the utility of Rosen's piece, does anyone really think that Obama's investigators would not have picked-up on any issues regarding Sotomayor's temperament but for Rosen's article?  Let's get real, as they say.  

Finally, Wandrey, with all respect, you should not let yourself be backed off so easily.  The focus on Judge Sotomayor's "temperament" raises a legitimate question about whether sexism is afoot.  The US courts of appeals are pervaded by judges who can be perceived as arrogant, rude and abusive of the lawyers who appear before them.  Some might place Justice Scalia in that category.  I do not recall "temperament" being a major issue in prior confirmation proceedings, even though there might have been a basis for it in certain instances had it been regarded as particularly important.  Now, a female nominee comes along who clearly is an aggressive, tough questioner, and her "temperament" is a major issue.  Is every person who questions Judge Sotomayor's temperament motivated by sexism?  Not by a longshot.  But is it fair to ask whether the general focus on her temperament is rooted in sexism?  Absolutely.  

- dhurtado

May 30, 2009 at 1:44pm

Right on dhurtado, you're right.  Sexism (or suspicion of it) always makes me so nervous. I demand to be judged on my character alone and expect other women to as well.  But when something stinks, its stinks.  I need to be fortified at times in this regard because I don't perceive sexism in my head, I feel it in my stomach.  

As far as temperment, Scalia's dyspeptic, entitled hectoring is looked on a a sign of character, whimsy even. What a kooky genuis that one!  Better be on your toes and all that.  Such *standards.*

I wonder how Republicans would feel if Sotomayer had say, regularly gone hunting with - and palled around with at Federalist Society shindigs for decades - a sitting Vice President.  

Please.

- Wandreycer1

May 30, 2009 at 3:38pm