Blowback in the SCOTUS Wars

By Lindsey Ellerson

May 6, 2009 1:30pm

Supreme Court fights get ugly. Anyone old enough to remember how "Bork" became a verb knows that.

The first shot fired against U.S. Court of Appeals for the Second Circuit Judge Sonia Sotomayor came from New Republic writer Jeffrey Rosen, who wrote that he’d "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."

Conservatives seized upon this piece, with the National Review’s Mark Hemingway writing of Judge Sotomayor: "she’s dumb and obnoxious. Got it."

The National Review’s John Derbyshire added "Judge Sotomayor may indeed be dumb and obnoxious; but she’s also female and Hispanic, and those are the things that count nowadays. Get with the program, Pal."

Many others in the mainstream media take what Rosen has to say quite seriously.

The piece was noted by TIME’s Mark Halperin ("Jeff Rosen Raises Warning Flags on Sotomayor") and by The Atlantic’s Marc Ambinder, who wrote that, "Conservative talk radio hosts have begun impugning Sotomayor’s credibility. And the respectable intellectual center — see Jeffrey Rosen’s case against her temperament and inherent intellectual abilities — is beginning to have doubts."

But others had a different response to Rosen’s piece, particularly because Rosen wrote that he himself had not "read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths."

In The Atlantic, Ta-Nehisi Coates said this admission "drips with unintentional irony–Rosen is attacking Sotomayor’s ability to do the necessary intellectual heavy-lifting, while explicitly neglecting to do any of his own. In this instance, His piece reads like a burglar’s brief against rampant criminality. Authored mid-robbery, no less. I mean him no disrespect. I’m sure he is a hard-working, talented writer. Journalism is difficult, and in this age, the urge to immediately have an opinion on everything is quite strong. But this is exactly why that urge has to be resisted. Opinions matter–even ill-informed ones. You don’t get to be the ‘respectable intellectual center’ and then practice your craft in the gossip-laden, ignorant muck. Not for long anyway. You know what this is–Great power. Great responsibility."

And Salon’s Glenn Greenwald, attacking "anonymous smears against Sonia Sotomayor," assailed Rosen’s use of anonymous sources.

"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," Greenwald wrote. "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."

There’s a lot more out there, some invective and some personal attacks against Rosen (who, after all, allowed some anonymous personal attacks against Sotomayor.)

But rather then go there, I think more interesting and relevant are the comments of Greenwald, a former litigator, who says that 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."

Others protesting the profile of Judge Sotomayor include American University Law School professor Darren Hutchinson.

- jpt

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