The Case Against Sotomayor

[Lunar]

A judge on the U.S. Court of Appeals for the Second Circuit, Sonia Sotomayor's biography is so compelling that many view her as the presumptive front-runner for Obama's first Supreme Court appointment. She grew up in the South Bronx, the daughter of Puerto Rican parents. Her father, a manual laborer who never attended high school, died a year after she was diagnosed with diabetes at the age of eight. She was raised by her mother, a nurse, and went to Princeton and then Yale Law School. She worked as a New York assistant district attorney and commercial litigator before Senator Daniel Patrick Moynihan recommended her as a district court nominee to the first President Bush. She would be the first Hispanic Supreme Court justice, if you don't count Benjamin Cardozo. (She went to Catholic schools and would also be the sixth Catholic justice on the current Supreme Court if she is, in fact, Catholic, which isn't clear from her official biography.) And she has powerful supporters: Last month, the two senators from New York wrote to President Obama in a burst of demographic enthusiasm, urging him to appoint Sotomayor or Ken Salazar.

Sotomayor's former clerks sing her praises as a demanding but thoughtful boss whose personal experiences have given her a commitment to legal fairness. "She is a rule-bound pragmatist--very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background," says one former clerk. "She grew up in a situation of disadvantage, and was able, by virtue of the system operating in such a fair way, to accomplish what she did. I think she sees the law as an instrument that can accomplish the same thing for other people, a system that, if administered fairly, can give everyone the fair break they deserve, regardless of who they are."

Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family--working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier of a Harry Potter movie.

But 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.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for examples, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)

But 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.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for examples, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)

http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085

[Purple State]

This does not appear to actually be, although it is framed as such by the author, a scathing review of Sotomayor. I do believe there is some things here not to like, but I have already made clear I am not completely concerned with the quality of this first SCOTUS nominee.

I will try to restate in one cohesive post what all my other posts have meant. Essentially, it all matters on timing. Historically, a president's first appointment to the SC is a symbolic one, meant to break a barrier or two. Sotomayor would fit this profile perfectly. It is also especially important that Obama's first pick not force him to spend an excessive amount of political capital. If the pick is not made until October and Franken has been seated and his agenda (healthcare, cap-and-trade,...) has passed, I would argue Obama should definitely choose an exemplary justice. However, if his legislative pushes are deadlocked and floundering it would be harmful to nominate a controversial justice. He would be better off sticking with the female Hispanic.

Either way this needs to be a female pick, whether it is Sotomayor or someone else. And down the road there must be another female (probably to replace Ginsburg) and a Hispanic on the court.

[Lunar]

I disagree to an extent on a number of points.

1.  A symbolic pick isn't necessarily limited to tokenism.  Picking an intellectual heavyweight, or the possible opposite of one, are also symbolic of his presidency.  Picking someone that might not look like an esteemed justice will reflect poorly on Obama, if if the nominee has a vagina and grew up in the Bronx, etc.

2. I don't think he'll have to spend extensive political capital supposing there are 60 Democratic senators and the nominee has been vetted.  These filibusters are partisan votes, and not ones that you're going to see Snowe and Collins upholding just because the nominee believes in Roe v. Wade and whatnot.

3.  Ironically, picking someone completely due to tokenism could also restrict Obama's ability to select a nominee that's clean and drama free.

4. In terms of impressing Hispanic voters for 2012, as I've said before, I think that Obama would be best served by picking that justice closer to election day so it's fresh in voter's minds.  I agree with you that Obama needs there to be a Hispanic on the court by the end of 2012, but if he doesn't restrict himself only to Hispanic females then he'll have a wider range of legal minds to choose from.

5. What do you think of Kathleen Sullivan to make a symbolic statement?  She's gay

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

Either way this needs to be a female pick, whether it is Sotomayor or someone else. And down the road there must be another female (probably to replace Ginsburg) and a Hispanic on the court.

The court is not, nor was ever meant to be a representative body.

[Brittain33]

The court is not, nor was ever meant to be a representative body.

It is good for our democracy and society for it to be representative, and a diversity of experiences represented among nine great legal minds will produce fairer results with more perspectives.

Certainly having some diversity on the court in the 19th century would have helped us avoid some of the Court's more disgraceful opinions, as impossible as it was at the time.

[Torie]

She seems like a horrid choice per the above thumbnail sketch. There should be no room on the court for intellectual mediocrities of any stripe. I doubt that she will be very happy there. She will be in over her head, ala Justice Harry Blackmun.

[Earth]

She will be in over her head, ala Justice Harry Blackmun.

How was Blackmun over his head?

[Landslide Lyndon]

She will be in over her head, ala Justice Harry Blackmun.

How was Blackmun over his head?

He didn't satisfy the conservatives silly.

[they don't love you like i love you]

I really hope she isn't picked, not just for the whole Moderate Hero thing, but also because Obama shouldn't cave to any opinion but his own. He doesn't "owe" the pressure groups anything, and has the right to nominate whoever he wants for the Supreme Court. Now that we have benconstine basically arguing that Obama has to appoint her unless he can come with a good reason not to shows how skewed the process has become. The President never needs a negative reason to NOT appoint someone, they simply appoint whoever they find the best choice. Period.

Anyway, I predict that Obama's choice will be similar to Roberts, someone who isn't all that talked about or very well known, but fits the basic criteria of what one would expect from him. Maybe a woman, but still most comparable to Roberts, just liberal.

[Ogre Mage]

I have problems with Rosen's so-called analysis.  I'll write more later, but given his continuous insinuations that she just isn't brilliant enough, frankly I think the most significant thing he wrote was this:

You must be logged in to read this quote.

Also, this is a question Rosen had for then Attorney General nominee Eric Holder:

You must be logged in to read this quote.

http://www.nytimes.com/2009/01/15/opinion/15questions.html

Frankly, I think that question says something about Mr. Rosen's personal biases.

[Kaine for Senate '18]

Now that we have benconstine basically arguing that Obama has to appoint her unless he can come with a good reason not to shows how skewed the process has become.

I'm not making that argument.  I was merely making a point.

[Earth]

She will be in over her head, ala Justice Harry Blackmun.

How was Blackmun over his head?

He didn't satisfy the conservatives silly.

Ah, of course. Thanks for clearing that up.

[Kaine for Senate '18]

Obama should ignore the interest groups.  If the best choice is a WASP male, he should pick him.  All I want out of the nominee is someone <55 years old, who will uphold Roe, the 2nd Amendment, and the death penalty.  Sadly, I don't think any such nominee exists.

[jamestroll]

Obama should ignore the interest groups.  If the best choice is a WASP male, he should pick him.  All I want out of the nominee is someone <55 years old, who will uphold Roe, the 2nd Amendment, and the death penalty.  Sadly, I don't think any such nominee exists.

Wow we agree on something.. lol.

No, no nominee exists.

However, I believe it would be in Obama's best interest to appoint a female. Or hillary will get mad.

[Lunar]

Obama should ignore the interest groups.  If the best choice is a WASP male, he should pick him.  All I want out of the nominee is someone <55 years old, who will uphold Roe, the 2nd Amendment, and the death penalty.  Sadly, I don't think any such nominee exists.

If wishes were fishes then we'd all cast nets.  There are still all kinds of political concerns when it comes to appointing a justice, that's like saying Obama should ignore symbolism in his administration.  Yeah, right.

Besides, there are plenty of qualified people of both genders, there's no unquestionably "best" choice.

[Kaine for Senate '18]

However, I believe it would be in Obama's best interest to appoint a female.

Perhaps, but I want him to pick someone qualified.  I don't want a Clarence Thomas of the Left, someone who was only selected because of their race or gender.  I want the best possible nominee, and I don't believe Sotomayor is the best possible nominee.

[Landslide Lyndon]

I guess having someone like Jeff Sessions leading the charge against a Hispanic woman will do wonders for GOP's image among women and minorities.
I mean, what's not to love about this guy?

http://tpmdc.talkingpointsmemo.com/2009/05/senator-who-praised-segregationist-judges-will-lead-opposition-to-obama-nominees.php

[Lunar]

So, a guy who was once rejected by a Republican-controlled Judiciary Committee for his possibly racist judicial leanings is now the head Republican in it?  Cool/sad.

[Torie]

She will be in over her head, ala Justice Harry Blackmun.

How was Blackmun over his head?

He had great trouble writing opinions (he was very slow and wrote relatively few as a result), as well as understanding the legal issues, and relied heavily on his clerks, who could substantially influence him.   The guy was just short about 20 points in IQ poor thing.

[Nym90]

Obama should ignore the interest groups.  If the best choice is a WASP male, he should pick him.  All I want out of the nominee is someone <55 years old, who will uphold Roe, the 2nd Amendment, and the death penalty.  Sadly, I don't think any such nominee exists.

Wow we agree on something.. lol.

No, no nominee exists.

However, I believe it would be in Obama's best interest to appoint a female. Or hillary will get mad.

Not to mention TexasIndy.

[Mr. Morden]

I guess having someone like Jeff Sessions leading the charge against a Hispanic woman will do wonders for GOP's image among women and minorities.
I mean, what's not to love about this guy?

http://tpmdc.talkingpointsmemo.com/2009/05/senator-who-praised-segregationist-judges-will-lead-opposition-to-obama-nominees.php

Why did Sessions get it over Hatch when the latter has more seniority?

[Ogre Mage]

I noticed that the main sources for this piece are "former law clerks for other judges on the Second Circuit" and "former federal prosecutors in New York" all of whom have been cited anonymously.  Character attacks from anonymous sources don't strike me as credible.  We have no idea what their agenda is or if they have ties to other potential nominees.

I find the charges of Sotomayor being "a bully" and "domineering" to be rather laughable.  First, they sound awfully similar to accusations in a conservative attack memo released a few days ago, making one wonder exactly who Rosen's sources are.

http://www.politico.com/blogs/bensmith/0509/Conservatives_target_Sotomayor_Kagan_Wood.html

At any rate, I would hope for a forceful advocate on the bench, not some wallflower who is going to let Scalia walk all over her.  I've heard women lawyers described in similar terms before and it smacks of more than a little sexism.  As for the charge she has an "inflated opinion of herself" -- well, so do the majority of the current members of the Supreme Court.

The more substantive criticism is that Sotomayor, while intelligent, is just not brilliant enough for the Court.  While her ability to interpret a statue and express her view of the law is a valid topic for discussion, I'm going to attack a scared cow and say brilliance is overrated. 

When Sandra Day O'Connor arrived at the Court in 1981, she was regarded as smart and capable, but hardly one of the brilliant legal thinkers of her time.  Yet as the years passed, she become one of the most influential Justices in recent history -- many of the most crucial and high profile cases were essentially decided by her -- so much so that one analyst joked that she was "the most powerful woman in the universe." 

In contrast, Antonin Scalia is widely regarded as brilliant even by his foes and his opinions have been quite influential among conservative legal thinkers.  Yet his influence on the other Justices has been minimal. 

Judge Sotomayor got her undergraduate degree from Princeton summa cum laude and was an editor for the Yale Law Review while in law school.  She worked as an assistant district attorney in NY as well as in private practice.  She has been a judge for 16 years, including 10 on the Federal Court of Appeals.  This is the background of a highly qualified Supreme Court nominee, not some minimally qualified affirmative action flunkie.

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.

[Kaine for Senate '18]

Why did Sessions get it over Hatch when the latter has more seniority?

Term limits.  Hatch can't take over Judiciary again for the GOP.

[Torie]

I have problems with Rosen's so-called analysis.  I'll write more later, but given his continuous insinuations that she just isn't brilliant enough, frankly I think the most significant thing he wrote was this:

You must be logged in to read this quote.

Also, this is a question Rosen had for then Attorney General nominee Eric Holder:

You must be logged in to read this quote.

http://www.nytimes.com/2009/01/15/opinion/15questions.html

Frankly, I think that question says something about Mr. Rosen's personal biases.

Rosen in the past has been an extremely impressive in his analysis of SCOTUS and the personages on it, or who want to be on it. He's a liberal, but he is very smart, and knowledgeable. Without reaching the merits as to his comments on this particular woman, it would be a mistake to sell him short, or depreciate his views assuming that they are colored by  bias to the point that they distort any reasonable possible reality.  He is just better than that. JMO.

[Kaine for Senate '18]

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.