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.
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.
In the Times, Rosen gave his views on what qualities the next Justice should have:
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.
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That's redundant. To the extent Miers left a trail, she's a liberal.
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Liberals are quite capable of twisting the textualism method to suit any outcome their empathy dictates.
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.
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.
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.
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.
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.
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.
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.
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.
Yep. And nasty on top of it. Winning combo.
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.
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?
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.
This is absurdly narrow. See Clarence Thomas's comments in Virginia v. Black for a counterexample.
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.
Heller.
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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.
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?
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!"
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.
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.
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.
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.
Funny that you didn't hear this stuff about the intellectual giant Clarence Thomas.
Either way, its a good diversion.
Quite a few do. They generally result in 9-0 reversals of the Ninth Circuit.
Nick
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.
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.
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?
Unlike, say, Robert Bork, who was neither egotistical/arrogant or nasty? The new conservative choice is for niceness and humility?
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