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.

a_non (mail):
It would be a shame if the furor over Rosen's sourcing allows him to avoid responding to this critique. I, for one, would be very interested in hearing his defense of what he wrote about the Juncal footnote.
5.7.2009 1:27pm
Tim H. (mail):
Rosen's column was ridiculous...give me someone who's willing to say those things on the record and I'll believe it...
5.7.2009 1:27pm
Uh_Clem (mail):
Rosen's piece was very effective propaganda. Dorf's point about the footnote will be dismissed by most people as, well, lawyers arguing about footnotes instead of the naked intellectual dishonesty that it is.
5.7.2009 1:40pm
Benjamin Davis (mail):
Uh_Clem is absolutely right. Rosen did a hatchet job. Screw him (in good French).
5.7.2009 1:42pm
Derrick (mail):
This whisper campaign article was particularly offensive because of the stereotypes that he wanted to promote. You can argue that Sotomayor isn't Learned Hand, but to dismiss her intelligence in the casual way that he did despite all evidence to the contrary just reeks of bigotry.
5.7.2009 1:55pm
Anderson (mail):
Yeah. Rosen's been kinda dubious over the years, "even" when his position favored my side of the partisan divide.

Whatever one thinks of Kennedy, Thomas, and Alito, it seems very difficult to argue that Sotomayor is not in their league.
5.7.2009 2:00pm
Cato the Younger:
Is this the same Jeff Rosen who *invented* the phony "Constitution in Exile" movement out of thin air?

Why should anyone care what he thinks about anything?
5.7.2009 2:25pm
EverydayLiberal (mail):
Other than bald assertions and feigned horror at anonymous sources tackling sensitive material, has anyone "on her side" penned a substantive defense that I can read?

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.
5.7.2009 2:26pm
Rosen's article in The New Republic about Justice Kennedy was pretty awesome.
5.7.2009 2:35pm
This one, though... maybe the idea was to write a critique that was so scathing and so obviously flimsy that Sotomayor's endorsers would have an excuse speak up without looking like they were campaigning.

Dorf has his own conspiracy theory, which is kinda weird:

Here's my entirely speculative hypothesis: Someone who was a law clerk for Judge Winter when the Juncal case (containing the footnote) was decided thought at the time that Samaria misstated the law, and this Winter law clerk had an unfavorable view of Judge Sotomayor. He or she urged Judge Winter to drop a footnote that would disavow the language from Samaria. Judge Winter did so, but not in a way that chided Judge Sotomayor. Now, eight years later, the former Winter law clerk pointed Rosen to the Juncal footnote as evidence of Sotomayor's supposed incompetence, perhaps forgetting that as written, the footnote assigns all blame to the lawyers rather than to Judge Sotomayor. Rosen then cited the footnote without bothering to read it.
5.7.2009 2:43pm
Michael Dorf's "speculative hypothesis" strikes me as quite plausible. The Juncal footnote is exactly how I'd expect a judge to say that a colleague on the bench misstated the law. By relying on the fiction that attorneys are misinterpreting the Samaria case, Judge Winter both manages to be collegial and also avoids having to follow Samaria, which would be binding precedent until overruled, even if wrongly decided.
5.7.2009 3:30pm
Realist Liberal:

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).


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."
5.7.2009 3:32pm
Ben S. (mail):
I think Dorf's comment (and this whole debate) is kind of stupid, really. To summarize: He (Dorf) criticizes Rosen for holding out a footnote in Judge Winter's opinion as illustrating that a decision by Judge Sotomayor misstated the law.

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.
5.7.2009 5:34pm
John P. Lawyer (mail):
I have read both the Samaria case and footnote from Judge Winter's opinion, and I am having difficulty understanding how anyone (especially a law professor) would suggest that Sotomayor's opinion misstated the law in the 2d Circuit. Indeed, I think a more accurate description of the footnote is that it mischaracterizes (and that would be putting it charitably) the discussion in Samaria. The discussion about conscious avoidance in Samaria has nothing to do with the sufficiency of the evidence. (See Samaria ("Because we find that the government has not presented evidence sufficient to prove the requisite specific intent, we need not reach the further issue of whether conscious avoidance could have been inferred from this evidence, and, if so, whether the jury was properly instructed."))

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)).
5.7.2009 6:01pm
It sure seems like Judge Winter was calling Judge Sotormayor out for misstating the law without doing so explicitly.
5.7.2009 6:01pm
Alex Blackwell (mail):
Glenn Greenwald at has the latest on Rosen's "reply" to all the criticism regarding his TNR piece.
5.7.2009 7:33pm
zuch (mail) (www):
Cato the Younger:
Is this the same Jeff Rosen who *invented* the phony "Constitution in Exile" movement out of thin air?
Oh, Rosen's behind that?!?!? I though it was Hannity or Levin or one of those nut cases that I heard on RW talk radio inviting me to get on board that movement a month or so back....

5.7.2009 11:17pm
zuch (mail) (www):
Cato the Younger:

See more here and here.

5.7.2009 11:20pm
zuch (mail) (www):
Cato the Younger:

Ooops, second link should be this.

5.7.2009 11:21pm

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