Rosen v. Sotomayor: The Footnote Question:
Michael Dorf has an interesting post on the "inexplicable error" in Jeff Rosen's article about potential Supreme Court nominee Judge Sonia Sotomayor. Dorf concludes: "either Rosen didn't read or didn't understand the Juncal footnote, or he did read and understand it but chose to mischaracterize it as a means of putting his own substantive point in the mouth of Judge Winter. Pick your poison." See also this post by Darren Hutchison.
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Best,
Ben
Whatever one thinks of Kennedy, Thomas, and Alito, it seems very difficult to argue that Sotomayor is not in their league.
Why should anyone care what he thinks about anything?
Her scholastic qualifications seem to be great ones, graduating summa from Princeton and YLS. But as Orin noted before, academics like those evaluating Sotomayor tend judge themselves on a different, more rigorous, scale. Indeed, most of the judges on the federal bench have uniformly impressive academic records.
Another positive for her seems to be others' view that Rosen's misinterpretation Winter's footnote in Juncal calls into question the entire analysis of his TNR article. But as I mentioned before, Rosen isn't the only one arguing his case.
I'm really not encouraged that her appointment wouldn't be an affirmative-action pick when I read those measured, reasoned comments from others echoing Rosen's POV being reflexively denounced on liberal blogging territory as "racist" and "sexist", full stop. Anti-racist zealots don't exactly have a great intellectual record of disagreement.
Cabranes' public dissent in Ricci vs. DeStefano isn't exactly a rousing endorsement of her appointment either. And almost everywhere I read that she is considered abrasive and arrogant, which in my experience tends to characterize the weaker thinking of "soft" candidates.
If anything, the push-back has been reflexively partisan and ideological, which as seen above only requires a few short lines of harrumphing to be regarded as devastating in the eyes of the some.
Dorf has his own conspiracy theory, which is kinda weird:
Yes it is. I lost a lot of respect for him because of that whack job book and now I lost even more respect (admittedly this one hurts my side of the political spectrum).
krs~
Yes Dorf has a crazy conspiracy theory but at least he says what it is, a pure and utter guess. Rosen tries to cloak his pure guesses as "journalism."
But whether Judge Winter's footnote does so or not, even Dorf himself concedes that Judge Sotomayor either (a) mistated the law, or (b) expressed the law in such a way that it could very easily lead to a misunderstanding of the law. The bottom line, then, is that Sotomayor goofed in some shape or form.
Moreover, Dorf's hypothesis strikes me as a bit too conspiracy theory. Is it not possible that Judge Winter himself recognized that Sotomayor misstated the law, but rather than embarrass her, did the next best thing by foreclosing attorneys from interpreting her decision the way it was written? That seems like a Solomon-esque way to resolve the issue: Plug the error in Second Circuit doctrine, but without embarrassing the judge who created it.
In sum, Judge Winter's footnote does not necessarily foreclose Rosen's reading of it, either because it was, in fact, prompted by Sotomayor's misstatement of the law, or because, as Dorf himself concedes, it was necessary to resolve understandable confusion sparked by a poorly written Sotomayor opinion.
In the end, I seriously doubt whether any of this matters either way regarding Sotomayor's qualifications.
In short, all Sotomayor did was explain that even if the evidence established that the defendant acted with conscious avoidance, that is not enough to establish that the defendant acted "intentionally." And that was nothing more than a reiteration of 2d Circuit law. (See Samaria's citation to United States v. Mankani, 738 F.2d 538, 547 n.1 (2d Cir. 1984)).
Cheers,
See more here and here.
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Ooops, second link should be this.
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