May 4, 2009

Jeffrey Rosen makes the case against Sonia Sotomayor.

The name we've heard bandied about the most may not be the best choice to replace David Souter:
She would be the first Hispanic Supreme Court justice, if you don't count Benjamin Cardozo. (She went to Catholic schools and would also be the sixth Catholic justice on the current Supreme Court if she is, in fact, Catholic, which isn't clear from her official biography.)
It fascinates me that practically no one dares to say too many Catholics. (Click that link, dammit.) If we're ever going to talk about group representation and diversity, we need to talk about the overrepresentation of Catholics. Catholics are 22% of the U.S. population. 6 is 66.6666% of 9.

On the other hand, we really can't suddenly start noticing all the Catholics just when a Hispanic name comes up for the first time. Who can estimate the destructive power of the resultant diversity vortex?

Back to Rosen:
Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for examples, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.
Not that smart. That's what I hear in that passage. The classic putdown. (Click that link, dammit.)

Who are these unnamed former clerks? What brilliant star might they want to clear the path for?
The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)
(Interesting parenthetical. The extent of Rosen's knowledge of Sotomayor's involvement is not known by me.)
Not all the former clerks for other judges I talked to were skeptical about Sotomayor. "I know the word on the street is that she's not the brainiest of people, but I didn't have that experience," said one former clerk for another judge. "She's an incredibly impressive person, she's not shy or apologetic about who she is, and that's great." This supporter praised Sotomayor for not being a wilting violet. "She commands attention, she's clearly in charge, she speaks her mind, she's funny, she's voluble, and she has ownership over the role in a very positive way," she said. "She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?"
Can you put a little more glue on that not-smart-enough label?

37 comments:

Chris said...

I've asked people about the whole Catholic SCOTUS thing and I haven't gotten a good answer. My suspicion is that it has something to do with abortion bona fides. Pick someone who thinks for him or her self and you risk a Souter. If you want to be certain about some issues (like abortion) better to make sure your selection is imprisoned in a web of superstition.

AJ Lynch said...

Obama was a community organizer. Is that too funny or what?

MadisonMan said...

I'm sure Obama would say that Sonia Sotomayor is Smart Enough.

You know what irritates the heck out of me in that article? The un-named sources (says the man with a pseudonym on blogger) who slam the putative appointee. I know that's the way things are done, but if you have an opinion, own it!

TMink said...

Do these people really think that Latinos are actually different that whites or Asians? Do you people? In what way? Is it similar to how poodles are different psychologically than labradors? Seriously.

Trey - who knows that standard poodles are quite psychologically similar to labradors

jimbino said...

Hispanics are grossly underrepresented in higher education and even more so in fields like science, math and engineering.

Women are grossly underrepresented in science, math, engineering, economics and a whole lot of other fields that are also lacking among the other 8 justices, with the exception of Breyer.

Appointing to SCOTUS a Catholic Hispanic Female with a BA degree in the same humanities fluff (history, english, baby econ, international affairs and [darwin forbid] government as the other 8 and almost all of Congress and POTUS is hardly a move toward "diversity."

Does anyone know in what field she took her BA from Princeton? Psychology, I imagine. Certainly nothing substantive.

Paul Zrimsek said...

If we're ever going to talk about group representation and diversity, we need to talk about an institution that's actually meant to be representative, not the Supreme Court.Fixed.

traditionalguy said...

Sotomayer could easily destroy the Supreme Court simply by demanding that she win every vote or she will go public about the Stubbornly Ultra Right Wing Refuseniks who are thwarting the will of the people. The Party shall destroy the machinery of Capitalist Repression that they came to power to replace with the Party's great "empathy". We are facing a crisis de jour smokescreen, and the Party only needs 5 votes.

EDH said...

Rosen made Sotomayor sound like Jeanine Garofalo.

Trooper York said...

She is not a real Catholic. She is a "Joe Biden" Catholic. So no worries for you haters.

Trooper York said...

Plus she didn't know dick about baseball but that didn't stop her from screwing it up. In retrospect that makes her a perfect Supreme Court justice. Making the law about stuff she doesn't know dick about.

Darren Lenard Hutchinson said...

The article should have another title: The Case Against Jeffrey Rosen. Here's my take: Hatchet Job: Jeffrey Rosens Utterly Bankrupt Analysis of Judge Sonia Sotomayor

Thomas said...

I was reading recently (somewhere, I don't know where, else I'd link) that we've had 12 Catholic Supreme Court justices. And 5 are there now. It seems to me you can't starting talking about overrepresentation of a particular religious group now, when overrepresentation seems to have been with us for a very very long time.

former law student said...

For decades, the most overrepresented faith has been Judaism, with 1.7% of the population yet 22% of the Supreme Court. And surely the Catholics, with 24% of the population, have a deeper bench than the Jews.

Is Sotomayor dumber than Souter?

I heard a lot of smack talked about O'Connor -- that the quality of her writing varied according to the quality of her clerks.

EnigmatiCore said...

The only evidence I see that Sotomayor is dumb is that she managed to get herself videotaped admitting that justices make policy, regardless of if they are supposed to or not.

Lem said...

Thanks for the reminder Trooper.

Anybody who knows anything about baseball knows that these out of control salaries are ruining the game. Some argue its already ruined.

Back in 1994 the owners decided to do something about it. When the players went on strike the owners were going to bring in replacement players. Sotomayor stopped it.

The owners were force into another agreement ensuring the out of control status quo.

Sotomayor should not be allowed to run a post office much less have a seat at the Supreme Court.

Seven Machos said...

If the United States needs a Hispanic Supreme Court justice, I am available. I am not Hispanic in the slightest, but no one is going to know with the mask.

I believe Lem is Hispanic-ish, too. He is also available.

former law student said...

Anybody who knows anything about baseball knows that these out of control salaries are ruining the game. Some argue its already ruined.

Baseball is the only major league sport I can afford to see in person, so I would have expected outcries over out of control football, basketball, and hockey salaries, first.

But as far as the travesty of 1994 goes, no fate is too dire for the owners. The great Frank Thomas had a substantial shot at winning batting's Triple Crown that year, for the first time in over a quarter-century, until the owners pulled the plug on the season.

Cedarford said...

The below quote could be applied to a lot of politicians running for President:

"I know the word on the street is that she's not the brainiest of people, but I didn't have that experience," said one former clerk for another judge. "She's an incredibly impressive person, she's not shy or apologetic about who she is, and that's great." This supporter praised Sotomayor for not being a wilting violet. "She commands attention, she's clearly in charge, she speaks her mind, she's funny, she's voluble, and she has ownership over the role in a very positive way.....



Think of Al Sharpton, Jack Kemp, Jesse Jackson, Sarah Palin, even John McCain. Not too smart. But clearly in charge, speaking their minds undistracted by the facts, and taking ownership of their perspective roles.

************************
FLS - former law student said...
For decades, the most overrepresented faith has been Judaism, with 1.7% of the population yet 22% of the Supreme Court. And surely the Catholics, with 24% of the population, have a deeper bench than the Jews.

Is Sotomayor dumber than Souter?

I heard a lot of smack talked about O'Connor -- that the quality of her writing varied according to the quality of her clerks.
.

1. There WAS talk when Alito was nominated that that would be the 5th Catholic and perhaps that wasn't good. As it left only one Protestant remaining, and Protestants are 52% of the American population.
But adding a 3rd Jew like Elena Kagan would mean even more disproportionality.

2. Is Sotomayor dumber than Souter? Looks likely. Our Diva declares it the theme of her post.

3. I think you meant it as a defense of Sotomayor by bringing up O'Connor. Probably because the media fell all themselves in a slobber-fest praising O'Connor on retirement only exceeded by their fealty later to The Black Messiah who can command ocean levels and heal the planet.
But O'Connor had made herself into a laughingstock by voting on how she FELT about something on a given day, or would have voted as a legislator, then tried fitting law to justify her vote. And not very ably...as in later years Scalia, past mentor Reinquist lost patience with her vapid, opaque, ill-reasoned opinions and began clubbing her like a wounded duck that fell into Dick Cheney's blind.

**************
Perhaps it should be a hispanic. But the media and PC forces always love to push for the "two-fer". If you are looking for a qualified black, "wouldn't it make sense??" they argue, to bypass all black men and focus only on women, or "at least limit the eligibility to women and handicapped or gay black men?".

Of course this really frosts bypassed black men who see "queen bees" vaulted to the top of various Gev't and university jobs..

So a perception Obama sees "only hispanic women are good enough to be in the pool" would not only displease whites, blacks who have been awaiting an antipodal Clarence Thomas, but also considerable nembers of Latins who see men as the natural head of households or businesses, and women in a traditional role.

And plenty of Hispanic males with broader life experiences, better credentials exist than the "Two-fer" Sotomayor. Even broader appeal to various hispanic and mainstream constituency groups.

Examples:
Ruben Castillo is the son of a Mexican immigrant and Puerto Rican mother. 1st person on either side of his family to go to college. Non-Ivy university, but excellent legal mind. Served both defending the poor, working for immigrant legal rights..And tough enough to war with hispanic drug gangs who put a contract out on his life.

2. Ken Salazar, widely respected, held high elective office. 12th generation American and a moderate. Interior Secretary but might be the perfect "peace offering" candidate to avoid yet another consuming political battle on his already busy plate.

3. Bill Richardson. Lots of credentials and who might have been the "broad experience, empathetic" person he wanted..but unfortunately Richardson showed himself to be dumber than Sotomayor in his recent Presidential run AND managed to backstab the CLintonistas, who never forget a betrayer...

LonewackoDotCom said...
This comment has been removed by the author.
LonewackoDotCom said...

TMink opines: Do these people really think that Latinos are actually different that whites or Asians? Do you people? In what way? Is it similar to how poodles are different psychologically than labradors? Seriously.Apparently you missed the last few decades of racial politics in the U.S. Let me suggest a course at the AlSharpton School Of Justice to get you up to speed.

Meanwhile, SS is PuertoRican, slightly complicating matters. Namely, if selected would she be a complete puppet of more MexicanAmerican-oriented groups like the NCLR or LULAC? Or, would there be issues on which she wouldn't completely do everything they say?

See also the Congressional Hispanic Caucus, Luis Gutierrez, and the links at the end of this post.

hdhouse said...

"....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."

Hence the term "clerk" and hence the term "judge".

AlphaLiberal said...

Ann missed this gem from the story:

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

IOW, Jeffrey Rosen is talking out of his ass.

Seven Machos said...

Yeah, HD, these federal law clerks are never going to do dick with their lives.

Lem said...

I believe Lem is Hispanic-ish, too. He is also available.

Unfortunately I must decline.. given my excellent health and a much expanded scheduled w/ my family ;)

hdhouse said...

Perhaps the Republicans out there can nominate an Hispanic Woman from their midst that they deem suitable and the left would just have to go along...wait wait...

what do you mean there are no Hispanic woman .......

Seven Machos said...

HD -- Let's suppose, arguendo, that there is not a single Hispanic woman who is not a Republican. Why is that bad? Is a bunch of people with different skin colors sharing the same party affiliation some tremendous good? Does it outweigh, say, the right to carry a concealed weapon or the rights of embryos?

Anyway, about those law clerks. You probably think that they are clerks in the sense that you are a clerk, behind that bullet-proof glass in that little booth.

TMink said...

Lone wrote: "Let me suggest a course at the AlSharpton School Of Justice to get you up to speed."

Funny answer!

Do you think Al really believes what he says? I see him as a snake oil selling race pimp.

But then, it might just be me.

Trey

Randy said...

After glancing through this hit-piece, it seems to me that Jeffrey Rosen has a preferred candidate for this position. Who that is will probably become apparent in time (and/or his writing).

hdhouse said...

Seven Machos said...
HD -- Let's suppose, arguendo, that there is not a single Hispanic woman who is not a Republican. Why is that bad? .... Does it outweigh, say, the right to carry a concealed weapon or the rights of embryos?

I didn't say it was bad..just implausible...as to the rest, what in the world are you talking about?

a psychiatrist who learned from veterans said...

I think Roberts gave a good lawyerly answer. He may approach Roe v. Wade as Souter did, giving stare decisis similar weight. He may think that the idea of 'privacy' as a constitutional principle is an overreading as applied to this situation. He may have felt, not having been the 'decider,' that he couldn't really know his answer when talking with the Senator but did know that he could comment on a personal moral vs. judicial issue that might be relevant. The priests of the Catholic Church in my view tend to be sympathetic to Pontius Pilate and thus would allow an individual in concert with society to decide something that the Church might find abhorrent or allow a judge to permit, if not make, such a decision.

former law student said...

Souter wasn't a law clerk either.

Maybe his spot is for the second raters.

But Souter was a Rhodes Scholar.

So, to fill his shoes I recommend Yale LS grad and Rhodes Scholar William Jefferson Clinton (another non-clerk).

LonewackoDotCom said...

hdhouse: I can think of three GOP Hispanic females, one slightly famous. Another ran for office just recently, and another did a couple years ago. There are also, of course, many more.

The problem is that the first and last above both - surprise! - support MassiveImmigration by other Hispanics, and their interest in the issue is clear and is enabled by the GOP having internalized far-left concepts.

The middle one above got very little national GOP support, and one IL GOP official even encouraged people to write in "AbeLincoln". She's a rarity: a Hispanic leader who doesn't support MassiveImmigration.

P.S. I don't get paid for schooling people, but you can always visit my site.

craig said...

Chris said... "I've asked people about the whole Catholic SCOTUS thing and I haven't gotten a good answer. My suspicion is that it has something to do with abortion bona fides. Pick someone who thinks for him or her self and you risk a Souter. If you want to be certain about some issues (like abortion) better to make sure your selection is imprisoned in a web of superstition."Yeah, that whole web of superstition that built Western Civilization. Catholicism is a intellectually rigorous faith. Any faith with a tradition of philosophical inquiry and debate inclusive of Augustine, Aquinas, Erasmus, and all the way up to Wojtyla and Ratzinger, is naturally going to attract those people whose interests lead them toward fundamental questions of truth, justice, science, and the common good. It will also breed such interests among its own people.

As someone else noted, I'm waiting for the folks who say there are too many Catholics to also say there are too many Jews. Most of them won't, because it's still socially acceptable to say things about Catholics that you can't say about Jews.

Mark said...

"She worked as a New York assistant district attorney and commercial litigator before Senator Daniel Patrick Moynihan recommended her as a district court nominee to the first President Bush."

In this review I believe the phrases smart enough can be freely replaced by liberal enough without altering Rosen's intended message in any way.

kentuckyliz said...

psychiatrist wrote:
The priests of the Catholic Church in my view tend to be sympathetic to Pontius Pilate ....Whiskey Tango Foxtrot!

The Catholics are the ones who keep blaming Pontius Pilate by name week after week in the communal public recitation of the Nicene Creed.

The Orthodox made him and his wife saints.

Don't confuse "Mel Gibson" with "the priests of the Catholic Church."

There aren't as many Protestant SCOTUS judges because of the Protestant tendency toward anti-nomianism. Leads to scorn for the law.

(While defusing one bomb, I just had to drop another...)

a psychiatrist who learned from veterans said...

Kl: Re: 'keep blaming him.' My view would be 'blaming a little' which is why, in part, I said the priests were 'sympathetic.' That isn't the same as endorsed. The creed is, in part, purported to be a statement of fact (and as to one's feelings about it 'results may vary'). Your info about the Orthodox Church, rather than being a counter example, suggests a long standing tradition aligned with sympathy. Acts of Apostles around the reading for last week has Peter remonstrating with others that Pilate offered freedom to Jesus but instead the crowd freed a murderer. Off topic but I found Peters nearby statement that Jesus "must stay in heaven" fun. What? For his own good? Or like Alexander Haig, "I'm in charge here."

chuck b. said...

The Catholics--they just caaaan't wait to re-establish the League of Decency and micromanage our genitals. Yeepppp.

That's what they want. Yeeepppp.