The Case Against Sotomayor

[Ogre Mage]

While there was a lot of criticism of his legal views, I don't recall a flood of questions about Alito's intellectual ability when he was nominated, yet he seems no more qualified than Sotomayor.  One must ask if she is being held to a different standard.

That's a long post, I'll try and get to it later.  Let me just talk about this, first.  Alito wasn't the only qualified white man available, and if he was, there would probably be more criticism of him.  Also, Sotomayor is suffering the inevitable downfall of being a frontrunner this early in the process, which means a closer scrutiny.  The author in this article seems more focused on criticism than his own biases -- I expect him to treat the other potential nominees roughly in the same way, an aggregate collection of opinions [anonymously] gathered from their associates.  Obviously this isn't the most credible way to construct a narrative, but it's the only way in a case like this.

Except that in this case, it actually was mainly anonymous sources from law clerks of other judges on the 2nd circuit and former federal prosecutors.  Rosen does not have even one on the record source.  Most of this piece reads as tabloid journalism passed off as legal analysis.  I don't know why anonymous former law clerks of other judges would have have some special insight into Sotomayor's fitness for the Supreme Court.

And Prof. Darren Hutchison says Rosen doesn't even get his facts straight:

You must be logged in to read this quote.

http://dissentingjustice.blogspot.com/2009/05/hatchet-job-jeffrey-rosens-utterly.html

[Ogre Mage]

While there was a lot of criticism of his legal views, I don't recall a flood of questions about Alito's intellectual ability when he was nominated, yet he seems no more qualified than Sotomayor.  One must ask if she is being held to a different standard.

Alito was editor of the Yale Law Journal, clerked for Judge Leonard I. Garth of the Third Circuit, was United States Attorney for the District of New Jersey for 3 years, and spent 16 years on the United States Court of Appeals for the Third Circuit.  He was extremely qualified, perhaps even more so than Sotomayor.

Sotomayor is equally well-qualified.  Their resumes are pretty comparable, but only Sotomayor has been tagged as mediocre and intellectually unfit.  Both got their B.A. at Princeton and attended Yale Law School, where they both edited the law review.  She doesn't have his experience serving as a U.S. Attorney, but she was a NY District Attorney and one could argue her judicial experience is actually broader, as she has been a judge in both the Federal District Court and the Federal Court of Appeals, giving her both trial and appellate court experience.  Alito's work as a judge was all at the appellate level.

None of this is to say she should be a shoo-in.  However, my bullsh**t detector has been going off with regards to much of the criticism I have been reading about her.

[Lunar]

Fair enough.  Rosen's piece is legitimately unqualified after reading some of the far more qualified and on-the-record criticism of her.

She may not be a legal heavyweight and she may be hard to get along with, limiting her ability to influence the court, but Rosen's gossipy sources are not indicative of that and his question proposed to Holder shows an innate bias.  Let's see if this is indeed a recurring segment.

[Torie]

Fair enough.  Rosen's piece is legitimately unqualified after reading some of the far more qualified and on-the-record criticism of her.

She may not be a legal heavyweight and she may be hard to get along with, limiting her ability to influence the court, but Rosen's gossipy sources are not indicative of that and his question proposed to Holder shows an innate bias.  Let's see if this is indeed a recurring segment.

Alito was considered an outstanding judge, including by liberals, with an excellent judicial temperament. Is that also true of Sotomayor?

[Sam Spade]

My advice for Obama would be to pick someone who's a great advocate, regardless of how liberal or moderate they are.

Right now, in about 80% (at least) of the controversial cases that fall along the expected lines, Roberts is persuading Kennedy his way.  He's just killing the more liberal justices on this front, and somehow managing to temper Scalia's excesses at the same time.

Another vote isn't going to change that (and an ideologue could make things worse), but an advocate could have some effect.

[The Mikado]

My advice for Obama would be to pick someone who's a great advocate, regardless of how liberal or moderate they are.

Right now, in about 80% (at least) of the controversial cases that fall along the expected lines, Roberts is persuading Kennedy his way.  He's just killing the more liberal justices on this front, and somehow managing to temper Scalia's excesses at the same time.

Another vote isn't going to change that (and an ideologue could make things worse), but an advocate could have some effect.

Sam's right, but I'm not sure how much that narrows it down.

[Purple State]

Fair enough.  Rosen's piece is legitimately unqualified after reading some of the far more qualified and on-the-record criticism of her.

She may not be a legal heavyweight and she may be hard to get along with, limiting her ability to influence the court, but Rosen's gossipy sources are not indicative of that and his question proposed to Holder shows an innate bias.  Let's see if this is indeed a recurring segment.

Alito was considered an outstanding judge, including by liberals, with an excellent judicial temperament. Is that also true of Sotomayor?

Hmm... Appointed to benches and passed by the Senate twice, once by a Republican and once by a Democrat. She seems to be known as a pragmatic, moderate justice well-liked by both sides.

I would think yeah. It's also true of Sotomayor.

[jamestroll]

How about Judge Reinhardt?

Of the 9th circus?

[Purple State]

How about Judge Reinhardt?

Of the 9th circus?

I assume this is a joke. He is considered on of the most liberal justice on the court of appeals. Not to mention he has one of the worst records in terms of reversals by the SC.

[Torie]

How about Judge Reinhardt?

Of the 9th circus?

I assume this is a joke. He is considered on of the most liberal justice on the court of appeals. Not to mention he has one of the worst records in terms of reversals by the SC.

Isn't he an old anyway?

[Purple State]

How about Judge Reinhardt?

Of the 9th circus?

I assume this is a joke. He is considered on of the most liberal justice on the court of appeals. Not to mention he has one of the worst records in terms of reversals by the SC.

Isn't he an old anyway?

Yes, 9 years older than Souter. To give you an idea how old he is, he has been in the Ninth Circuit seat since it was created.

[Kaine for Senate '18]

My advice for Obama would be to pick someone who's a great advocate, regardless of how liberal or moderate they are.

Right now, in about 80% (at least) of the controversial cases that fall along the expected lines, Roberts is persuading Kennedy his way.  He's just killing the more liberal justices on this front, and somehow managing to temper Scalia's excesses at the same time.

Another vote isn't going to change that (and an ideologue could make things worse), but an advocate could have some effect.

Sam's right, but I'm not sure how much that narrows it down.

It probably helps people like Kagan, and hurts people like Sotomayor.

[Mr. Morden]

How about Judge Reinhardt?

Of the 9th circus?

I assume this is a joke. He is considered on of the most liberal justice on the court of appeals. Not to mention he has one of the worst records in terms of reversals by the SC.

Isn't he an old anyway?

Yes, 9 years older than Souter. To give you an idea how old he is, he has been in the Ninth Circuit seat since it was created.

True, but what about Judge Reinhold?  He's only 51, and has ample police experience from his exploits with Axel Foley.

[Lunar]

Rosen responds with a more substantive argument:

http://www.tnr.com/politics/story.html?id=6168aeb7-9869-43eb-b401-2204a0d84478

[??????????]

http://www.youtube.com/watch?v=OfC99LrrM2Q

This woman is obviously not for this job.

[Purple State]

http://www.youtube.com/watch?v=OfC99LrrM2Q

This woman is obviously not for this job.

That is surely the end of her run. If all it takes is a quick YouTube check the media and Republicans will be all over this.

[Brittain33]

http://www.youtube.com/watch?v=OfC99LrrM2Q

This woman is obviously not for this job.

That is surely the end of her run. If all it takes is a quick YouTube check the media and Republicans will be all over this.

I wonder.

Everyone knows that what she said is true. It's essentially a propaganda point to say that judges don't make policy, and the only people who believe it are either ill-informed or highly invested in the propaganda. That's a sizable number of people. The latter group includes everyone who heard Clarence Thomas say he has "no opinion" on Roe v. Wade and smiled at this response, pretending to believe it while supporting him because they knew it wasn't true.

The salience of this argument depends on the salience of Republicans to turn it into a killer attack point, and I question its effectiveness. Republicans will find a common point of attack on any nominee Obama comes up with and run it through the "activist judges" filter. It's good this came out sooner, because Sotomayor can be prepared for when she's asked about it.

But while this doesn't disqualify her, there is the issue of whether Obama tries to avoid controversy. I think that question is more open on this specific attack than people would think, or it would be if the Senate were closer. We shall see. He has been very risk-averse until now.

[Landslide Lyndon]

Rosen responds with a more substantive argument:

http://www.tnr.com/politics/story.html?id=6168aeb7-9869-43eb-b401-2204a0d84478

A more ''substantive'' argument which gets whacked again by those who know better:

http://www.salon.com/opinion/greenwald/2009/05/07/rosen/index.html

http://dissentingjustice.blogspot.com/2009/05/rosen-defends-his-misreading-of.html

This guy is obviously sufering from the Lieberman Syndrome. If I was the editor of TNR I would give him a couple of months off and send him to take some journalism courses.

[Lunar]

also this:
http://www.balloon-juice.com/?p=20900


I agree with the criticisms of Rosen now.

[Torie]

also this:
http://www.balloon-juice.com/?p=20900


I agree with the criticisms of Rosen now.

What is wrong with repeating such private comments again?  Is the issue that Rosen seemed to consider such comments dispositive rather than something to look into further?

[Lunar]

The criticism of Rosen is that according to his own accounts, some of his private sources had problems with Sonia, and then hooked him up with sources close to her that THEY selected, all anonymous, and then used it to write a smear piece that profoundly affected her life while all factual elements in his article are simply false. 

For such a controversial story, there are people who are willing to go on the record, relying on cherrpicked anonymous gossip seems unethical journalistically.

px75's Salon link is the best.

[Torie]

The criticism of Rosen is that according to his own accounts, some of his private sources had problems with Sonia, and then hooked him up with sources close to her that THEY selected, all anonymous, and then used it to write a smear piece that profoundly affected her life while all factual elements in his article are simply false. 

For such a controversial story, there are people who are willing to go on the record, relying on cherrpicked anonymous gossip seems unethical journalistically.

px75's Salon link is the best.

I don't think repeating such gossip is unethical, as long as their is full disclosure that the sources have a bias so should be taken as dispositive. Do you disagree with that?  Why should Rosen "know" the buzz, yet have some duty not to share it?

[??????????]

http://www.youtube.com/watch?v=OfC99LrrM2Q

This woman is obviously not for this job.

That is surely the end of her run. If all it takes is a quick YouTube check the media and Republicans will be all over this.

I wonder.

Everyone knows that what she said is true. It's essentially a propaganda point to say that judges don't make policy, and the only people who believe it are either ill-informed or highly invested in the propaganda. That's a sizable number of people. The latter group includes everyone who heard Clarence Thomas say he has "no opinion" on Roe v. Wade and smiled at this response, pretending to believe it while supporting him because they knew it wasn't true.

The salience of this argument depends on the salience of Republicans to turn it into a killer attack point, and I question its effectiveness. Republicans will find a common point of attack on any nominee Obama comes up with and run it through the "activist judges" filter. It's good this came out sooner, because Sotomayor can be prepared for when she's asked about it.

But while this doesn't disqualify her, there is the issue of whether Obama tries to avoid controversy. I think that question is more open on this specific attack than people would think, or it would be if the Senate were closer. We shall see. He has been very risk-averse until now.

What everyone knows and what is right are obviously two different things.

[Landslide Lyndon]

The criticism of Rosen is that according to his own accounts, some of his private sources had problems with Sonia, and then hooked him up with sources close to her that THEY selected, all anonymous, and then used it to write a smear piece that profoundly affected her life while all factual elements in his article are simply false. 

For such a controversial story, there are people who are willing to go on the record, relying on cherrpicked anonymous gossip seems unethical journalistically.

px75's Salon link is the best.

I don't think repeating such gossip is unethical, as long as their is full disclosure that the sources have a bias so should be taken as dispositive. Do you disagree with that?  Why should Rosen "know" the buzz, yet have some duty not to share it?

Because Rosen claims that the people who provided these negative comments/smears on Sotomayor are ''prominent liberal scholars'' but we are unable to verify that because they all speak in anonymity. For all we know they might have an invested interest into seeing somebody else picked for the Supreme Court and they are willingly lying in order to sabotage Sotomayor (like Rosen himself apparently).

And as Greenwald says if they are indeed prominent legal scholars and not lawyers or clerks, then there is no excuse for them for refusing to talk on the record. Except of course if they want to lie and smear, and they want to do it with impunity.   

Of course there is also the problem of Rosen's own bias which showed mostly at his previous article where he questioned Sotomayor's intelligence and character, even though he admitted that he hasn't read any of her opinions. And not only that, but his main argument for her supposedly mediocre legal skils turned out to be completely false. And when he was caught he refused to apologize and instead offered some silly excuse about how there is a subliminal criticism somewhere in the footnote of judge Winter, which can only be perceived by Rosen's anonymous sources.

And it's funny how Rosen failed to find one person to speak positively about Sotomayor when so many other journalists had no such problem. And they all spoke on record of course.
 

[Ogre Mage]

And it's funny how Rosen failed to find one person to speak positively about Sotomayor when so many other journalists had no such problem. And they all spoke on record of course.
 

Yes.  The Washington Post profiled Sotomayor here.  Unlike Rosen, the writer actually has people willing to speak on the record.

http://www.washingtonpost.com/wp-dyn/content/article/2009/05/06/AR2009050603762.html?hpid=moreheadlines

Rosen's piece was extremely poor journalism, one which would have been given an F by any journalism professor worth their salt.  In his original piece, he said a footnote by Judge Winter in Sotomayor's Samaria opinion was an indirect criticism of her.  I am not a lawyer but after reading it, I did not have that impression.  Now he tells us his assessment was based on his anonymous sources telling him that was the "widely assumed" interpretation.  And the reader is supposed to believe that just because "anonymous sources" say so?  That is just very sloppy or he is being a hack to come to a predetermined conclusion.

I will not take seriously anything he says about Sotomayor in the future.