In May 2009, in the wake of news that Justice David Souter would retire from the Supreme Court, Jeffrey Rosen penned “The Case Against Sotomayor” for The New Republic, in which he argued thatthen-Judge Sonia Sotmayor was not the best available nominee. Rosen reported that he was hearing from others on the Left who were concerned that she would not be “a judicial star of the highest intellectual caliber who has the potential to change the direction of the court” and that her temperament might limit her influence with other justices. Rosen’s article was controversial, and prompted many negative responses from other liberals (some of which I chronicled in this string of posts).
Now it is revealed that at least one prominent liberal academic shared the concerns raised in Rosen’s article, and expressed them to the White House. As just reported by Ed Whelan on NRO, on May 4, 2009, noted Harvard Law School professor Laurence Tribe wrote President Obama urging him not to nominate Sotomayor to the High Court. Tribe wrote:
If you were to appoint someone like Sonia Sotomayor, whose personal history and demographic appeal you don’t need me to underscore, I am concerned that the impact within the Court would be negative in these respects. Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.
It’s unclear whether Tribe was one of Rosen’s sources, but Tribe’s concerns are similar to those Rosen identified in his reports. Only time will tell whether these concerns were justified.
As Whelan notes in a series of posts on Bench Memos, there’s more in the letter — much more — including praise for Elena Kagan, comments on Judge Diane Wood, unflattering comments about Justices Breyer and Kennedy, and an appeal for a job at DoJ. Charlie Savage of the NYT also reports Professor Tribe has revised his opinion of Sotomayor. He provided the following comment to Savage via e-mail:
I don’t comment on my confidential advice to the president, and I regarded the letter I wrote in May 2009 as confidential. The fact that it was leaked doesn’t change my policy. I can say this much: I’ve long held Justices Breyer and Kennedy in the highest regard, both as friends and as jurists, and I regret any contrary implication some may try to draw from my letter, taken out of context. I would also stress that the reservations I expressed about Justice Sotomayor prior to her nomination were amply refuted by the closer study I was able to give her record before the president made his decision and were happily negated by her performance as a justice thus far.
UPDATE: More from WSJ Law Blog.