In an article published in the New Republic, Jeffrey Rosen lays out "The Case Against Sotomayor." It is a very weak case.
Rosen, a law professor at George Washington University, concedes that Sotomayor, who grew up in a low-income single-parent household in the South Bronx, has a great biography. Despite her background, Sotomayor, a Puerto Rican woman, attended Princeton University and Yale Law School. She later became the youngest federal judge in the Southern District of New York at the time of her appointment. Rosen also concedes that Sotomayor has glowing support from other judges in the Second Circuit and from her former law clerks.
Rather than analyzing traditional data on judges (i.e., bar association reports), Rosen builds his "case" exclusively by holding discussions with persons who never worked for Sotomayor. Specifically, he "interviewed" former law clerks for other Second Circuit judges and former prosecutors.
Rosen's Biased SampleIt is unclear why Rosen only interviewed prosecutors and former clerks for other judges, rather than defense attorneys, litigators, and Sotomayor's own former clerks. But it does not take a degree in statistics to realize that Rosen's sample is extremely biased and limited. Although prosecutors do not hold uniform viewpoints, given the breadth of attorneys who have practiced before Sotomayor, Rosen's exclusive reliance on prosecutors is inexcusable.
Furthermore, clerks for other judges do not have the best ability to evaluate Sotomayor. In fact, the use of clerks to determine whether a judge should receive a Supreme Court nomination is extremely problematic. Most clerks have just graduated from law school, have never tried a case or practiced law, and do not have sufficient experience or knowledge of the law to make an informed assessment of a judge. Given these inherent weaknesses associated with a law clerk's opinion of a judge, Rosen's reliance upon law clerks who never worked for Sotomayor is a rather crude and unhelpful way of evaluating her qualifications.
The American Bar Association uses a much more expansive and generally accepted analysis (including talks with a broad cross-section of lawyers and judges) to evaluate judicial performance. After President Clinton nominated Sotomayor to the Second Circuit in 1997, the ABA reported that a "substantial majority" of respondents ranked her as "well qualified," while a "minority" found her "qualified."
Rosen Fails to Analyze Sotomayor's RulingsGiven Rosen's background in law, it might surprise many readers of his essay that Professor Rosen does not offer his own independent analysis of Sotomayor's rulings to support his condemnation of her candidacy. Instead, Rosen admits his own ignorance regarding Sotomayor's jurisprudence and the limits of the group of persons he interviewed:
I haven't 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. It's possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities.Despite his admitted lack of knowledge regarding Sotomayor's judicial record, Rosen urges President Obama to "satisfy himself that he has a complete picture before taking a gamble." Rosen has described Sotomayor as a "gamble" even though he admits that he has incomplete knowledge of her record as a judge. Reaching a conclusion about a person without knowledge or with incomplete knowledge of the individual's qualifications seems like a standard example of prejudice, but readers can draw their own conclusions about Rosen's motivation.
While Rosen does not independently analyze Sotomayor's jurisprudence, he mentions two cases that supposedly raise questions about her capabilities. First, he cites to a footnote in an opinion written by Judge Ralph Winter, a senior judge on the Second Circuit, which discusses a case that Sotomayor authored. Rosen says that the footnote is "unusual" and that Judge Winter finds that Sotomayor's opinion "might have inadvertently misstated the law in a way that misled litigants."
Rosen's assertion is patently untrue, and it grossly distorts the footnote's language. Winter's footnote is not "unusual." Instead, the footnote chides lawyers for misreading Sotomayor's ruling and for trying to expand the case beyond its holding:
[The party's] reading of Samaria [the opinion authored by Sotomayor] would attribute to it the overruling of a long-standing line of cases in this circuit. . . However, Samaria does not purport to address the validity of those cases in any way. Samaria's discussion of conscious avoidance related only to a sufficiency issue, and the panel thus made it clear that, on the evidence before it, the requisite level of intent could not have been found even on a conscious avoidance theory (emphasis added).Rosen has completely misrepresented Winter's footnote in order to question Sotomayor's competence as a judge, when the footnote actually criticizes the attorney's misplaced reliance upon the opinion she authored. The ruling at issue was unanimously decided.
Rosen also mentions an affirmative action case, Ricci v. DeStefano, that is currently pending before the Supreme Court. Again, Rosen offers no independent analysis of the case. Instead, he describes it as "controversial." He also says that dissenting judge Jose Cabranes criticized the majority for not addressing the constitutional issues raised by the plaintiffs. But it is not clear that Sotomayor even authored the "per curiam" ruling. Furthermore, the full Second Circuit voted 7-6 not to hear reargument of the case, which suggests that it was not a gross misstatement of the law or a misstatement at all.
Rosen has written a very weak case against Sotomayor. Hopefully, President Obama will not take a gamble and credit his bankrupt analysis while evaluating candidates to fill the vacancy created by Justice Souter's retirement.
[Note: Rosen has responded to some of his critics, and I have responded to Rosen's new arguments. Also, to what extent do gender and race stereotypes inform this debate?]
[Note: This article was edited to reflect that Sotomayor became the youngest judge in the Southern District of New York at the time of her appointment and that Judge Winter maintains "senior" status.]
Some citations to this article:
New York Times/Opinionator/Eric Etheridge: Supreme Court Smear
ABC News/Political Punch/Jake Tapper: Blowback in the SCOTUS Wars
Salon/Glenn Greenwald: Jeffrey Rosen, TNR and the Anonymous Smears Against Sonia Sotomayor
The New Yorker: Close Read: Insults and Impunity
Media Matters: TNR's Rosen Misrepresented Footnote in Making Purported "Case Against Sotomayor"
Recent Dissenting Justice articles regarding the Supreme Court:
Earth to Orrin Hatch: Even Conservative Judges Make Policy!
Talking Points on Souter Replacement?
Is Justice Scalia an "Irresponsible" Judge?