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Rosen v. Sotomayor:

Jeff Rosen makes "The Case Against Sotomayor." in The New Republic. The article, subtitled "Indictments of Obama's front-runner to replace Souter," presents a highly unflattering picture of the Second Circuit judge. Here's a taste:

despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. 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.

This essay is the first in a series of profiles on potential Supreme Court nominees. If Rosen's this blunt about Sotomayor, it will be interesting what he has to say about the other short-listers.

UPDATE: Gerard Magliocca responds to Rosen on Concurring Opinions. His bottom line: "Rosen's negative characterization of the Judge, which is based on conversations with various unnamed lawyers, is inaccurate."

UPDATE: Matthew Yglesias thinks this is the money quote from Rosen's article:

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.

Loophole (mail):
Is there a "liberal" method of deciding cases that can stand as an "intellectual counterweight" to textualism (which is procedurally conservative and only substantively conservative as a consequence)?

It seems to me that any "liberal" method will be less rigorous and more results-oriented. Maybe the Dems should just cut to the chase and make the case for results-oriented judging without worrying about the "intellectual counterweight" thing.
5.4.2009 9:17am
Quixotic77 (mail):
Shorter Rosen: Sotomayor's dumb.
5.4.2009 9:17am
johnd:
And lonely.
5.4.2009 9:42am
Observer:
In other words, she is a liberal Harriett Miers?
5.4.2009 9:45am
krs:
Given the last paragraph, the headline seems a bit overstated. But in light of Rosen's stated criteria for choosing a judge, the content of his New Republic piece is probably enough to state "the case against Sotomayor" for those who agree with him.

In the Times, Rosen gave his views on what qualities the next Justice should have:

Mr. Obama's focus should be on the candidate with the clearest and most galvanizing judicial philosophy, the greatest intellectual ability and the temperament that makes it most likely she (and the first nominee should be a she) can both challenge and persuade her conservative colleagues and ultimately transform the court.

Based on the information Rosen received from people who work and practice at the Second Circuit, despite her other strengths, Sotomayor doesn't appear to have those two qualities. I suspect that that explains the bluntness in the New Republic piece.
5.4.2009 9:56am
Frog Leg (mail):
These attempts to read the tea leaves always seem to have a very small signal-to-noise ratio. How often is it that a SCOTUS nominee was on the media short lists?
5.4.2009 9:58am
cboldt (mail):
-- In other words, she is a liberal Harriett Miers? --
.
That's redundant. To the extent Miers left a trail, she's a liberal.
5.4.2009 10:04am
cboldt (mail):
-- Is there a "liberal" method of deciding cases that can stand as an "intellectual counterweight" to textualism --
.
Liberals are quite capable of twisting the textualism method to suit any outcome their empathy dictates.
5.4.2009 10:06am
themighthypuck (mail):
Frog Leg: As you know, these aren't attempts to read tea leaves. They are attempts to shape opinion and hopefully impact the selection.
5.4.2009 10:07am
Frog Leg (mail):
themighthypuck,

That might be true, but it does not obviate the question. If that is the attempt, and the choices pushed are not made, it is pretty ineffectual.
5.4.2009 10:11am
Rock On:
@ Loophole:

Let's be honest, "textualism" isn't much of an objective procedure either in many cases. Very few things that are abundantly clear from the plain language of the text ever make it to the Supreme Court.
5.4.2009 10:21am
Loophole (mail):
@ Rock On

That's true, but I am thinking more about the theory than the practice. At least textualism, in theory, attempts to use an objective standard to decide cases. The most common criticism against textualism is that it doesn't always work in practice. But that criticism does not make for an alternative theory.

In practice, many of the more renowned "liberal" judges seem to have eschewed objective jurisprudential theory altogether and simply fallen back on the "now we judges know better" rationale. That method may more frequently produce liberal outcomes, but it's not as intellectually rigorous.

That's why I think finding an intellectual powerhouse on the "liberal" side will be a bit tricky.
5.4.2009 10:36am
Recovering Law Grad:
Is there any evidence that Sotomayor is the "front-runner"?

I don't think repeating it over and over as fact actually makes it true. It very well may be that she's not on any list at all.
5.4.2009 10:45am
MarkField (mail):

At least textualism, in theory, attempts to use an objective standard to decide cases. The most common criticism against textualism is that it doesn't always work in practice.


In my view, all Justices are textualists, at least as a start. By that I mean that they begin with the text. The distinction between liberals and conservatives (JMHO) amounts to two basic factors: conservatives see less ambiguity in the text; and liberals and conservatives disagree about what to do when the text is ambiguous.


In practice, many of the more renowned "liberal" judges seem to have eschewed objective jurisprudential theory altogether and simply fallen back on the "now we judges know better" rationale.


I don't believe any justice ever would characterize his own opinions that way. They all believe they're applying rigorous standards (though they disagree on what standards should be used). To the extent we observers disagree, that often says a lot about us, but not so much about the subjective attitude of the justices.
5.4.2009 10:46am
einhverfr (mail) (www):

In other words, she is a liberal Harriett Miers?


Remember that Miers withdrew her nomination the day after news of a speech she had issued a few years prior which showed she was pro-choice. Certainly many considered her to be liberal and that is why she ran into so much opposition and finally dropped out.
5.4.2009 10:52am
dmv (mail):
Can we all at least agree that, no matter what you think of Sotomayor, it's pretty damned pathetic that all the criticisms collected and quoted were from anonymous sources?
5.4.2009 11:04am
Thersites:
The problem for Obama is that the judges with the staunchly left-wing ideology he wants often have nasty dispositions, like Sonia Sotomayor and Stephen Reinhardt, or have monumental egos and colossal arrogance, like Deval Patrick.

Liberal Judges who have nice temperaments tend to be less reliably liberal on economic issues, like Justices Breyer and Souter, who disappointed some in the trial bar by voting for things like preemption and limits on punitive damages. They also tend to be less sympathetic towards criminals than politically-correct academics would like: consider Breyer's rejection of the Apprendi/Booker technicality for throwing out thousands of convictions. Similarly, Second Circuit Judge Jose Cabranes, a mainstream Democratic appointee who has voted to keep guilty criminals in jail more often than many of his colleagues (including not just his politically-correct Democratic colleagues, but also a couple of his Republican colleagues, Peter Hall and James Oakes, who found excuses to let violent criminals out of jail for reasons having nothing to do with innocence).

As it says in Midrash, he who is kind to the cruel is cruel to the kind. So judges who are personally nice are often harder on criminals in order to protect the innocent (a classic example being Pasco Bowman of the 8th Circuit).

Such rulings are anathema to politically-correct ideologies (popular among Obama DOJ appointees) that believe that crime is the product of societal racism and other "root causes" that can be blamed on society rather than the criminal himself.

Obama isn't going to want a liberal judge who is mainstream on economic issues, like Souter or Breyer. In 2001, he lamented that the Warren Court "didn't break free" from legal constraints to promote "redistribution of wealth" -- something that Breyer and Souter, because of their non-radicalism, haven't viewed as part of the judicial role.
5.4.2009 11:09am
Constantin:
Shorter Rosen: Sotomayor's dumb.

Yep. And nasty on top of it. Winning combo.
5.4.2009 11:22am
ruuffles (mail) (www):

They also tend to be less sympathetic towards criminals than politically-correct academics would like: consider Breyer's rejection of the Apprendi/Booker technicality for throwing out thousands of convictions.

Hmm. Weren't Scalia and Thomas in the majority of Apprendi? Plus, Breyer has consistently voted to limit the death penalty, so its a good bet he voted yes in today's cert grant to consider LWOP for minors in non-murders.
5.4.2009 11:23am
Gabriel McCall (mail):
Read an interesting critique of the Supreme Court's lack of background diversity here:



Consider the makeup of the court at the time Brown v. Board of Education in 1954. Chief Justice Earl Warren had been a three-term governor of California. Hugo Black and Sherman Minton had served in the Senate. Harold Burton was a former mayor of Cleveland. Stanley Reed had been in the Kentucky legislature, and was appointed by FDR to run the Reconstruction Finance Corporation at the height of the Great Depression. William Douglas was chairman of the Securities &Exchange Commission. Tom Clark had been a Texas district attorney.
...
Now consider the backgrounds of the current justices. Every single one of them was a federal appellate court judge at the time he or she was nominated to join the court. None has held elective office. Only the retiring Souter has presided over a trial, and only the 89-year-old John Paul Stevens has served in the military. Their education is even more uniform than their careers. Six attended Harvard Law School, while two others graduated from Yale.
...
The career path to get on the court has become astonishingly narrow. Go to Harvard or Yale Law School, clerk for a Supreme Court justice, work for one of a handful of elite law firms, become a law professor at a top school or rotate into a fancy government position, then get appointed to a federal appellate court and wait for your name to be called.


I never really thought about it before, but that seems... less than optimal. Wouldn't the court be better if the justices were bringing different life experiences into their deliberations?
5.4.2009 11:24am
iambatman:
Re Judicial philosophy: Everyone is all about balls and strikes until an issue they care about comes before the court. Everyone. Then they quit the baseball and straight to hardball. The only question is what they care about. Some care about reproductive rights. Others care about making sure the Civil Rights Act is gutted.
5.4.2009 11:38am
Malvolio:
Wouldn't the court be better if the justices were bringing different life experiences into their deliberations?
No.

The point of "life experience" is to get a broader sense of "If I do this, then that will happen." I, for one, do not want that in a justice. The role of the Supreme Court is to interpret the law, not to make policy decisions. I realize that many people, including President Obama, feel differently, but they are mistaken.
5.4.2009 11:47am
Frog Leg (mail):
Malvolio:


The point of "life experience" is to get a broader sense of "If I do this, then that will happen."


This is absurdly narrow. See Clarence Thomas's comments in Virginia v. Black for a counterexample.
5.4.2009 12:02pm
Urchin Barren (mail):
dmv:
Can we all at least agree that, no matter what you think of Sotomayor, it's pretty damned pathetic that all the criticisms collected and quoted were from anonymous sources?


I don't think it's pathetic, I think it's prudent.

These people are mostly former circuit clerks. They likely have some sort of profile that they are likely to want to protect.

Besides, what if she is selected? What if she is shortlisted by the administration (and not just the press)? They probably could do without having the fury of the White House Press Corps unleashed upon them.
5.4.2009 12:17pm
Kirk:
@Rock On,

Heller.
.
.
.
.
.
To answer an obvious objection: I am not, NOT, NOT saying what the Supremes did with it recognized that abundant clarity (else we'd already be hearing about the cases likely to sweep away most of the NFA and GCA), but you were talking about making it to the SC in the first place.
5.4.2009 12:34pm
Nunzio:
Do people really believe that policy considerations don't influence liberals, conservatives, and moderates on the Court?

I agree that liberals, in some cases, tend to ignore the plain-meaning of statutes while the conservatives tend to stick to it (though not always).

But both are pretty up in the air. In the Seattle/Louisville school cases, under an originalist understanding, was it really unconstitutional to favor blacks over whites and Asians? If "equal protection" is expanded to cover discrimination against majorities, as Chief Justice Roberts believes, why not gays?
5.4.2009 12:41pm
DangerMouse:
In practice, many of the more renowned "liberal" judges seem to have eschewed objective jurisprudential theory altogether and simply fallen back on the "now we judges know better" rationale. That method may more frequently produce liberal outcomes, but it's not as intellectually rigorous.

That's why I think finding an intellectual powerhouse on the "liberal" side will be a bit tricky.


Is there anything to liberal judging OTHER than claiming to know better, along with siding with the sympathetic party? Isn't that exactly what Obama wants? A judge who doesn't side with the correct result based on the law, but with a sympathetic party? That's why he claims empathy is the most important factor to a judge?

"Oh, here's a contractual dispute. And it appears that big, bad corporation is 100% in the right. And small, defenseless lesbian eskimo wiccan, who is also a card-carrying member of a clear victim group (lesbian eskimo wiccans) is in the wrong. In fact, she's so in the wrong that this is a textbook case of breach of contract. But we're going to rule that she wins, because we like her."

That's basically what liberal judging amounts to. The intellectual component is in masking what they're doing. That is, a liberal judge will use any and all reason or excuse in order to side with the sympathetic party.

The other aspect of liberal judging is finding new ways to invent rights that don't exist. Next up, a constitutional right to clone humans, as part of the next "sweet mystery of life" of reproductive freedom. "I want my son to be EXACTLY LIKE ME!"
5.4.2009 1:11pm
My Middle Name Is Ralph:
What a hack Rosen is. Call me when someone goes on the record.
5.4.2009 1:12pm
one of many:
If "equal protection" is expanded to cover discrimination against majorities, as Chief Justice Roberts believes, why not gays?
Oh, oh pick me, pick me. Because homosexuality is not a "race, color or creed". Admittedly there is an argument that it fits the last category, but as I understand it the argument is rejected in gay studies academic circles these days in favor of genetics.
5.4.2009 1:17pm
ChrisIowa (mail):
With two notable current crises being the whatever-it-happens-to-be-called-at-the-moment flue and the economy, which is going to happen first? The nomination of a full set of undersecretaries for Treasury and HHS, or a replacement for Souter?
My bet is on the SC nomination, since it will get more headlines. However, if the President had an executive, rather than political mindset, he would first fill the offices needed to respond to the crises at hand. Especially since Souter will apparently stay on until a replacement is approved.

I'm not faulting this blog for discussing it first, since it is a legal blog. But if the President's priorities are correct, he has more pressing issues to deal with.
5.4.2009 1:24pm
Conrad Bibby (mail):
It seems to me the essential difference between a conservative and a liberal judge is that the former confines his interpretive role strictly to the task of figuring out what Congress or the Founders meant, while the latter is willing to disregard the intentions of the Congress/Founders in order to favor more "just" outcomes. However, few judges are so brazenly liberal (by this definition) as to COMPLETELY disregard the written terms of a statute or Constitutional provision in order to do what they think ought to be done. They will always at least pretend to be conducting a straight-up inquiry into the text's actual, historical meaning.

The extent to which a liberal judge will impose his or her own values and policy preferences caries according to how much vagueness and ambiguity can be reasonably claimed to exist in the relevant text and the level of perceived importance the controversy has in the overall scheme of justice. "Liberal" justices can probably be trusted to decide mundane tax or admiralty cases correctly most of the time; but given a chance to rule on something like gay marriage, they'll absolutely decide the case according to their own whims and fancies.
5.4.2009 1:42pm
CJColucci:
I'm not faulting this blog for discussing it first, since it is a legal blog. But if the President's priorities are correct, he has more pressing issues to deal with.

How much actual Presidential time do you expect this to take? And since it is likely that the underlings working on this (Joe Biden and DOJ) will not be underlings who would otherwise be working on swine flu and Treasury appointments, where is the diversion of resources? As many readers of this blog would regretfully remind you, it's a big government.
5.4.2009 1:47pm
Anderson (mail):
Gerald Magliocca's piece sounds much more persuasive than Rosen's.

Judge Sotomayor sounds like someone who worked hard to get where she is, and correspondingly is not unfailingly patient with attorneys practicing before her who do not seem to have worked hard.

I would have thought that the VC's audience would welcome such a quality in a judge, for whatever worth that has in predicting future opinions and votes.
5.4.2009 1:58pm
levisbaby:
Ah yes, the need for an intellectual counterweight.

Funny that you didn't hear this stuff about the intellectual giant Clarence Thomas.
5.4.2009 2:42pm
ruuffles (mail) (www):

And since it is likely that the underlings working on this (Joe Biden and DOJ) will not be underlings who would otherwise be working on swine flu and Treasury appointments, where is the diversion of resources?

Either way, its a good diversion.
5.4.2009 3:06pm
NickM (mail) (www):

Let's be honest, "textualism" isn't much of an objective procedure either in many cases. Very few things that are abundantly clear from the plain language of the text ever make it to the Supreme Court.


Quite a few do. They generally result in 9-0 reversals of the Ninth Circuit.

Nick
5.4.2009 3:28pm
Ariel:
Malvolio,

The point of "life experience" is to get a broader sense of "If I do this, then that will happen." I, for one, do not want that in a justice. The role of the Supreme Court is to interpret the law, not to make policy decisions.

I'm a libertarian conservative, and I do want some of that on the bench. If you read some antitrust cases - frankly, pick any one you want more or less - they are almost always wrong on the economics. The underlying laws are essentially infinitely malleable, so it's not that they are driving the decision. Basic statistical errors (like correlation is not causation) are routinely made from the district court to the Supreme Court level.

I agree that the Supreme Court should interpret the law, where possible. But many laws, and most cases that make it to the Supreme Court, are ambiguous. It's a policy decision to make that choice. I think that a balanced set of justices with experiences e.g., in private business, would help drive better decision-making. The sorts of experiences I'd value are different from Obama, but I understand the impulse to have people with some different backgrounds, where backgrounds is properly construed to mean something other than the color of your skin.
5.4.2009 5:22pm
Jen:
The Rosen piece isn't very persuasive, due in large part to the passage that Yglesias quotes. Also, the complaints seem to center mostly on charges that she is too bitchy and not too smart. Both of these are things that nearly every woman in a position of power will have been accused of at one point or another. Yawn.

What I would like for her to answer in confirmation hearings should she be nominated(but won't hold my breath)is why she signed on to the abrupt dismissal of the reverse discrimination claims in Ricci v. DeStefano. It seems to me that the questions in the case deserved more than the treatment they received, no matter which way the court decided to rule. Jose Cabranes's dissent for the win on that one.
5.4.2009 5:22pm
BGates:
under an originalist understanding, was it really unconstitutional to favor blacks over whites and Asians?

Yes. Yes, it was.

As an interesting side note, you can ask that question with the words "blacks", "whites", and "Asians" in any order, and the answer will be the same.

Funny that you didn't hear this stuff about the intellectual giant Clarence Thomas.

Not really. George HW Bush didn't have a filibuster-proof majority in the Senate, besides which he wasn't an ideologue like Obama. The Thomas appointment was a sop to the conservatives, like Sotomayor would be a gift to Hispanics. The fact that you weren't aware of these differences is why I think you're not all that bright. Do you have any similarly compelling evidence for your jab at Thomas, or is it the standard left wing hatred of conservatives, especially black ones?
5.4.2009 11:39pm
RPT (mail):
"The problem for Obama is that the judges with the staunchly left-wing ideology he wants often have nasty dispositions, like Sonia Sotomayor and Stephen Reinhardt, or have monumental egos and colossal arrogance, like Deval Patrick."

Unlike, say, Robert Bork, who was neither egotistical/arrogant or nasty? The new conservative choice is for niceness and humility?
5.5.2009 9:57am

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