Sotomayor: An Unwise Latina

surrender · Jun 29, 2009

thumbs, that TNR article was eviscerated by Glenn Greenwald for being a shoddily-researched hit piece. The author has no credibility.

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

Jeffrey Rosen's New Republic smear of Sonia Sotomayor's intellect and character -- based almost exclusively on anonymous, gossiping "sources" -- is such a model of shoddy, irresponsible, and (ironically enough) intellectually shallow "journalism" that it ought to be studied carefully. Standing alone, it reveals quite a bit about anonymity-dependent "reporting" generally, The New Republic specifically, and how much of our political discourse is conducted.
Most of the gaping flaws in Rosen's piece have been fully highlighted by others. While most of those criticisms have focused on Rosen's horrendous use of anonymous sources -- one of the most apt reactions to Rosen's piece comes, appropriately enough, in the form of well-earned derision from Wonkette -- I highly recommend this post from Law Professor Darren Hutchinson. As Professor Hutchinson conclusively documents, one of the only issues raised by Rosen that was anything other than anonymous gossip -- a claim that one of Sotomayor's judicial opinions was harshly criticized in an "unusual" footnote by another Second Circuit judge -- is totally false. In fact, it's so obviously false that, as Hutchinson suggests, it could be the by-product only of Rosen's extreme sloth or (ironically enough again) his lack of intellectual capacity. Just read Hutchinson's post for an idea of how vapid, bereft of worth and downright misleading is Rosen's attack on Sotomayor.
I don't really have an opinion about whether Sotomayor would be a good pick for Obama -- I haven't done anywhere near the work necessary to formulate a meaningful judgment about that -- but, in my prior life as a litigator, I had some personal experiences with her. I had at least two, possibly three, cases in which she was the judge -- including a Second Circuit appeal for which she wrote the opinion (reversing the District Court) on behalf of a unanimous panel. At Oral Argument in that case, she was, by far, the most active questioner.
Based on those experiences, I'm genuinely amazed at how -- overnight -- she's been transformed in conventional wisdom, largely as a result of Rosen's piece, into a stupid, shrill, out-of-her-depth Puerto Rican woman who is being considered for the Supreme Court solely due to anti-merit, affirmative action reasons. The New Republic thus fulfills its principal function in life: to allow the Right to spout any sort of invective and bile and justify it by reciting the "even-the-liberal-New-Republic-agrees" defense.
In the last 24 hours alone, Rosen's article has been used by three different National Review writers -- who, I'd be willing to bet lots of money, know virtually nothing about Sotomayor -- to declare her to be "dumb and obnoxious." That's a phrase they've revelled in repeating three times now (and counting), culminating with this: "I'm sure Mark H. is right about Sotomayor's being dumb and obnoxious, just as Derb is right about her being female and Hispanic is all the [sic] matters." The amazing speed with which so many people who know absolutely nothing about her are willing, indeed eager, to assume that she's stupid and doesn't deserve her achievements -- based on the fact that she's Puerto Rican and female and Rosen published some trashy, unaccountable gossip feeding that perception -- is really remarkable.
My perception of Sotomayor is almost the exact opposite of the picture painted by Rosen. I had a generally low opinion of the intellect of most judges -- it's one of the things I disliked most about the practice of law -- but I found her to be extremely perceptive, smart, shrewd and intellectually insightful. The image that has been instantaneously created of her as some sort of doltish mediocrity, based on nothing but Rosen's water-cooler chatter, is, at least to me, totally unrecognizable. Of the countless federal judges with whom I had substantive interaction over more than ten years of litigation, I would place her in the top tier when it comes to intellect. My impressions are very much in line with the author of this assessment of Sotomayor, who had much more extensive interaction with her and -- unlike Rosen's chatterers -- has the courage to attach his name to his statements.
It's certainly true that she was very assertive and aggressive -- at times unpleasantly so -- in how she presided over her courtroom. In the first case I had with her, when she was still a District Court judge and I was a second- or third-year lawyer, I committed some sort of substantial procedural mistake (my recollection is hazy of my specific transgression, but I believe papers I submitted violated her rules and necessitated an adjournment of a hearing), and she very harshly excoriated me in a courtroom packed with lawyers from other cases (the scolding lasted roughly five minutes, though it seemed at the time like five hours). I certainly did not enjoy that, and at the time harbored negative sentiments towards her (who wouldn't?) , but that behavior -- for judges -- is the opposite of uncommon.
Federal judges have one of the most accountability-free jobs on the planet, and it very frequently breeds pompous, domineering and even abusive behavior. They have life tenure. Except in the most extreme cases of wrongdoing, they can never be and never are fired. They can't even be demoted or have their responsibilities diminished. They rule with virtually limitless reign over their little fiefdoms. The absolute worst that can happen to them is that their decisions are appealed and reversed, but in the federal court system, where (with some very narrow exceptions) decisions can be appealed only once the case is over, reversals happen quite rarely even for the worst judges, and when it does happen, there are no personal or professional repercussions.
Aggressive, intimidating and even bullying behavior by judges is about as common in the judicial system as witnesses and lawyers who fail to tell the complete truth. For many judges -- who earn less, often much less, than the lawyers who practice before them -- the ability to engage in such dictatorial behavior seems to be one of the few real perks of the job. Add to that the fact that many have overloaded dockets; shoddy lawyering is quite common; controlling one's courtroom is an important attribute for a judge; and one's patience wears thin after too many years at any job, and judicial behavior like that is so pervasive that it's just a fact of life in the practice of law.
For that reason, many of the judges who are most respected are perceived that way despite, or even because of, their aggressive, controlling and tyrannical behavior. That's what makes the complaints about Sotomayor's so-called "temperament" so baffling. Even amidst Rosen's orgy of anonymous pot shots, there is no incident that stands out in terms of extreme or particularly abusive conduct. Instead, the grievances are of the generalized type that her personality is grating and abrasive because of how "domineering" and unabashedly talkative she is.
I'm generally more resistant than many to express conclusions of this sort, but it's very hard in this case to avoid the impression that behavior that seems "authoritative" and "appropriate" when coming from familiar authority figures (such as all the white males on the bench Stuart Taylor hails as "brilliant") is immediately transformed into "domineering" and "egotistical" when coming from a woman who still speaks with a mild though discernible Bronx/Puerto Rican accent. The anonymous personality smears passed on by Rosen seem to say far more about Rosen's sources (and Rosen) than about Sotomayor. Salon's Rebecca Traister and The American Prospect's Adam Serwer both expertly highlight what are, in this case, the overt gender and ethnic overtones to the attacks on her.
What this sorry episode reveals, yet again, is just how poisonous and destructive is the reckless use of anonymous gossip-mongers masquerading as "journalism." My own impression of Sotomayor should be of very limited value because of how confined it is to a handful of cases and because there is too much information missing to assess the reliability and objectivity of my perceptions: How complicated were the cases I had before her? Did her rulings advance or impede my positions? How closely aligned are her judicial rulings with my political ideology? Was her conduct in those cases representative of what she normally does? What motives might I have to say good or bad things about her? But at least I'm attaching my name to my perceptions and providing as much information as I can about the basis for those views.
By contrast, because they're hiding behind the shield of anonymity Rosen gave them, virtually nothing is known about the gossip-mongers whose chatter was passed along by The New Republic. Rosen claims that "they're not motivated by sour grapes or by ideological disagreement--they'd like the most intellectually powerful and politically effective liberal justice possible," but there's no way for anyone to assess that. The word "liberal" can mean something completely different to a person like Rosen, writing in a magazine whose self-described mission is to re-create the Democratic Party in Joe Lieberman's image, than it means to many, perhaps most, people. None of Rosen's quotes is even marginally more valuable than this.
Beyond all of that, there are enough glaring journalistic breaches in Rosen's analysis -- as well as in his prior behavior in leading the crusade on behalf of John Roberts and his preemptive worry that diversity will play a role in Obama's pick -- to call into serious question how honestly and accurately he passed along these disparagements of Sotomayor's intellect and personality. But because it's all anonymous, there's no way to examine it, impose accountability on those who are opining, or to formulate any assessments about its reliability. Nonetheless, Rosen's gossip has, in many places, already solidified as conventional wisdom about Sotomayor: if Obama selects her, it will mean that he has subordinated merit and intellect to gender and ethnic diversity.
Sotomayor's decades of achievement in the face of overwhelming obstacles just gets dismissed with a few slothful, totally irresponsible smears from Rosen and his invisible friends. But that's how "journalism" so often works -- people are allowed to remain hidden while their views and assertions are uncritically amplified in the loudest venues and bestowed with an authoritative veneer that they absolutely do not merit.
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coldsweat · Jun 30, 2009

thumbs, you just want to believe that sotomayor is an unintelligent judge and are only searching for evidence that will prove your stance. if you actually articles about sotomayor from multiple sources, you'll see that many also testify to her intelligence (read the media matters report on her, for example).

you can criticize sotomayor because you don't agree with her legislative philosophy and actions, but to say that she is unintelligent is just wrong.

B-Bob · Jun 30, 2009

It's true, I'm thinking, that Princeton didn't completely drop their standards of graduating with honors, but maybe it is actually somewhere south of Boise City College or whatever now. Could be.

Sweet Lou 4 2 · Jun 30, 2009

thumbs said:

Absolutely not. For example, I was opposed to the nomination of Clarence Thomas. I never believed he had the best legal mind available at the time. Now, before anybody jumps to the conclusion that, since Sotomayor is Hispanic and Thomas is an African-American, I oppose minority candidates. (Remember, I myself am Hispanic). Because they are in for life, I support the finest legal mind available. I want to be clear, though, that I am happiest with a strict constructionist with a superior legal mind.
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I think your posts in this thread have been pretty fair and can't criticize you for much. Both Thomas and Sotomayor will get through based on their race and the other parties difficulty in going after a minority candidate belonging to a constituency key to their parties interest.

But I will say I haven't been impressed with a single SCOTUS appointment in my adult life. I wonder if it's because presidents pick very safe choices, not ones that are capable of being free thinkers. Oliver Wendell Holmes might be too controversial of a figure to ever be appointed in the modern world. very sad.

basso · Jun 30, 2009

i'm rather amused at the turn this thread has taken, the typical liberal tactic of flaming the bearer of the news, rather than the news itself.

although the decision was 5-4, not a singngle justice defended soto's summary judegement, 9-0, the very model of a modern major case smackdown.

mc mark · Jun 30, 2009

Only wacked out crazies like Rush and basso (who says he never listens to Rush) could somehow justify a 5-4 decision as a 9-0 decision.

Talk about losing touch with reality

rimrocker · Jun 30, 2009

basso said:

i'm rather amused at the turn this thread has taken, the typical liberal tactic of flaming the bearer of the news, rather than the news itself.

although the decision was 5-4, not a singngle justice defended soto's summary judegement, 9-0, the very model of a modern major case smackdown.
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It's a bit of a shock to see you folks defending the emotional approach to the law. One might think you support empathy in the courts. As Greenwald writes oh so well...

In the now famous "white firefighter" affirmative action case -- Ricci v. DeStefano -- the Supreme Court today, in a 5-4 ruling (.pdf), reversed the decision of a unanimous Second Circuit Court of Appeals panel (which included Judge Sonia Sotomayor) and held that the firefighters were the victims of unlawful racial discrimination. The Court split along standard ideological lines (Roberts, Thomas, Scalia, Alito and Kennedy in the majority), with Kennedy writing the Court's opinion. Four Justices agreed with the Second Circuit's panel, including David Souter, the Justice whom Sotomayor has been nominated to replace. Several points are noteworthy about this decision:

(1) In light of today's ruling, it's a bit difficult -- actually, impossible -- for a rational person to argue that Sotomayor's Ricci decision places her outside the judicial mainstream when: (a) she was affirming the decision of the federal district court judge; (b) she was joined in her decision by the two other Second Circuit judges who, along with her, comprised a unanimous panel; (c) a majority of Second Circuit judges refused to reverse that panel's ruling; and now: (d) four out of the nine Supreme Court Justices -- including the ones she is to replace -- agree with her.

Put another way, 11 out of the 21 federal judges to rule on Ricci ruled as Sotomayor did. It's perfectly reasonable to argue that she ruled erroneously, but it's definitively unreasonable to claim that her Ricci ruling places her on some sort of judicial fringe.

(2) The irony of using Ricci against Sotomayor has always been that the reason this case resonates for so many people is due to empathy for the white firefighters. That irony is underscored by today's ruling, as Justice Kennedy devotes multiple paragraphs at the beginning of his opinion to highlighting all of the facts (as opposed to legal arguments) which make people sympathetic to Ricci. Conversely, Justice Ginsburg, writing for the dissenters, noted upfront that the white firefighters "understandably attract this Court's sympathy," but it must be the law -- i.e., long-standing legal precedent and the purpose of Title VII of the Civil Rights Act -- which determines the outcome.

From the start, those protesting Sotomayor's decision in Ricci did so by appealing not to law, but to emotion, non-legal precepts of "fairness" and empathy -- at the very same time that those very same people mocked the notion that those considerations should play any role in judicial decision-making.

(3) For all the chatter about "judicial activism" and that dreadful Roberts metaphor of "a neutral umpire calling balls and strikes," it is so striking how frequently conservative judges invalidate policies which conservatives dislike as a political matter. Here we have the conservative wing of the Court declaring illegal the employment decisions of local government officials, who used a political approach -- diversity -- which conservatives dislike on policy grounds. So often, the outcomes of the allegedly neutral conservative judges are completely consistent with (and aggressively advance) the political preferences of conservatives (Bush v. Gore being only the most obvious example). Indeed, few things are rarer than conservatives Justices invalidating policies that conservatives like politically, or upholding policies they despise -- the true test for whether one applies the law independently of political and outcome preferences.

(4) As is true for most discussions of affirmative action, the fight over Ricci has completely ignored the countless ways that whites in America have long benefited, and continue to benefit, from exactly the sort of non-merit considerations which affirmative action opponents decry. As Justice Ginsberg noted, whites had a virtual monopoly for decades on firefighter positions until Congress extended Title VII to public employment ("firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow"), and city officials in this case determined that the test in question was flawed because, among other things, it did not reward merit. The result of the Court's decision in Ricci -- barring the City of New Haven from invalidating metrics with a racially disparate impact -- is this:

Regardless of one's views on affirmative action, the complaints about not-merit-based factors cut both ways. As for Sotomayor, the Court's 5-4 decision today ought to put an end to the attempt to use Ricci to depict her as being somehow out of the judicial mainstream and thus unfit for the Court.

UPDATE: Scotusblog's Tom Goldstein makes several similar points about the decision:

I am struck by the extent to which the majority opinion largely treats the court of appeals’ ruling as a non-event. To the contrary, Justice Kennedy almost seemingly goes out of his way not to criticize the decision below, notwithstanding that the [five-member majority of the] Supreme Court takes a dramatically different view of the legal question. The Court indicates that the state of the law before today’s ruling was “a difficult inquiry,” and that its “holding today clarifies how Title VII applies.” It rejects the plaintiffs’ outright attack on the Second Circuit’s decision as “overly simplistic and too restrictive" . . . .

In the end, it seems to me that the Supreme Court’s decision in Ricci is an outright rejection of the lower courts’ analysis of the case, including by Judge Sotomayor. But on the other hand, the Court recognizes that the issue was unsettled. The fact that the Court’s four more liberal members would affirm the Second Circuit shows that Judge Sotomayor’s views were far from outlandish and put her in line with Judge Souter, who she will replace.
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That last sentence is the key point and should end any attempts (other than by right-wing polemicists looking to raise money off her nomination) to use Sotomayor's Ricci decision to depict her as out-of-the-mainstream.

http://www.salon.com/opinion/greenwald/2009/06/29/ricci/index.html
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vlaurelio · Jun 30, 2009

basso said:

not a singngle justice defended soto's summary judegement, 9-0
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lilink plplease.

TITIAA

FranchiseBlade · Jun 30, 2009

basso said:

i'm rather amused at the turn this thread has taken, the typical liberal tactic of flaming the bearer of the news, rather than the news itself.

although the decision was 5-4, not a singngle justice defended soto's summary judegement, 9-0, the very model of a modern major case smackdown.
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basso, you've moved the goalpost.

Your thread title doesn't claim that the justices didn't defend her part in the 2nd circuit ruling.

It infers that the Justices decision highlights that she was unwise in her ruling.

By the standard that you set, you've failed miserably. I'm not attacking the news, because the news doesn't need attacking. I'm attacking the bearer, because they way you bore the news was with a misleading title.

I won't even say that misleading thread titles are par for the course for conservatives like you, but I will say it is very par for the the course you take.

It is why in thread after thread you have failed outright, and ended up with more egg on your face than any other poster on this board including TJ.

Not one of the justices protrays the 2nd circuit ruling as unwise. Until you can show that it does, you have failed once again.

You are the Washington Generals of this bbs.

pgabriel · Jul 1, 2009

FranchiseBlade said:

you have failed once again.

You are the Washington Generals of this bbs.
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