Monday, May 4, 2009

Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor

[New and Convenient Sotomayor Link Page: Sonia Sotomayor on Dissenting Justice]

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?


Regina said...

Thanks for putting things into context. Do want to point out that Puerto Ricans are American by birth so, IMHO, the phrase "Puerto Rican-American" is redundant.

Thank you again for the post!

Mercy said...

Rosen's characterization of the footnote is unbelievable! That alone discredits his opinion and shows his bias.

Anonymous said...

She attended Princeton and Yale Law School, the best college and law school in the US. As you know, Yale is perenially the best law school in the US.

Yet she has an "IQ problem"? Obama went to an inferior college and law school yet he's "brilliant"? For writing two bullshit, new-agey books ABOUT HIMSELF?

This is a textbook case of sexism. A man of color is "brilliant" but a superior woman of color who works her way up from the working class is "too dumb".

Darren Lenard Hutchinson said...

Regina - I understand the point on PR.

Mercy - I was extremely shocked by the footnote.

Donnadarko - As much as a love Yale Law School and Penn, I am not sure I would call Harvard and Columbia "inferior." But I do believe that Rosen's essay likely rests on prejudice. He was so willing to condemn her without reading her work; that's either gross irresponsibility or prejudice.

Anonymous said...

She should be disregarded on the basis of the Ricci case alone.

Matt Rea said...

Aw, anonymous, you're so *cute*. And what an argument!

Anonymous said...

Thank you for breaking this down in such a clear and succinct manner. The use of anonymous sources in one-sided hit pieces on political figures has gotten out of control and this article (and your analysis of it) highlights the reasons why this practice is so odious. The anonymous sourcing allows us no insight into the biases of those who cowardly loft criticism while withholding their names. And Rosen omits the crucial information, provided by you here, that the negative opinions that he publishes are definitively outliers in the range of opinions about Judge Sotomayor. Shame on Rosen -- and more importantly, shame on the editors of TNR -- for using this practice in this piece.

Xanthippas said...

Linked to your takedown of Rosen. He deserves to be ripped for that piece of garbage, and TNR should be ashamed of themselves for printing it. I'm not sure how a magazine that claims to do serious journalism would ever allow that nonsense to be printed, unless it's a manifestation of some agenda on their part.

Darren Lenard Hutchinson said...

Thanks, Xanthippas.

Anonymous: 7 of 13 judges on the Second Circuit denied reargument of Ricci. To use that case as a basis for denying her nomination is ludicrous.

Another Anonymous: You're welcome. Anonymous evaluations have a role in rating judges. I believe the ABA protects the names of the individuals. BUT, the ABA also seeks a cross-section of people who have litigated before or worked with the judge. Rosen only reports reviews from prosecutors and former clerks of other judges. This is shoddy work.

Francois said...

Prof. Rosen did a brilliant discrediting himself.

Anonymous said...

By the current rules governing our public discourse this eminently factual and analytical take-down will be assimilated under the rubric "Rosen's analysis Hit A Nerve with the Far Left Bloggers!" and thus rendered inert. Thus the borg-like imperviousness of the corporate media to anything but rightwing screechery.

Still, I'm glad you wrote it and only wish there was some hope of Rosen being compelled to address it.

Elizabeth said...

A footnote! In an opinion! How utterly shocking.

I also went back and perused Ricci v. DeStefano, and while it is certainly not controversial, it seems that the 2nd Circuit did a good job of trying to untangle a disparate impact case.

Anonymous said...

Obama was not given the "affirmative action" treatment and a Puerto Rican male with her credentials considered for SCOTUS would not get the same treatment from Rosen and Yglesias. The problem in this case is sexism not racism.

Darren Lenard Hutchinson said...

Donnadarko - it could be both race and sex. That does not mean it's not "sex" - but it probably includes both.

Anonymous said...

The author of this post makes several decent points, but what in the world led him to think Judge Sotomayor was the youngest person ever appointed to the federal bench? She was young when appointed at age 37, no doubt, but Joseph Story, Ricardo Hinojosa, and Timothy Lewis were younger when they became federal judges, and those are only the ones I can think of off the top of my head.

Darren Lenard Hutchinson said...

Thanks anonymous: she became the youngest in the SDNY at the time of her appointment.

Anonymous said...

Thanks for the great analysis.
I offer, for your consideration, one small point. A 7-6 vote on a motion for rehearing en banc is actually somewhat notable. Rehearing en banc is pretty rare in 2d Cir, so even getting that close says something. Most judges are very deferential to the original panel, so the fact that nearly half the court thought it was worth reconsideration is something. Not earthshattering, but more than nothing.

Anonymous said...

the fact is now Sotomayor has been branded a stupid spic. Obama has not even made his choice and the blagobuzzsphere is out in full force to cram this woman down our throats or to discredit her by any means. Please remember Sotomayor is a human being and deserves some respect.

Darren Lenard Hutchinson said...

Anonymous: I understand that the en banc denial was a close vote. But the fact that 1/2 wanted reargument cannot mean that someone on the panel that issued the per curiam ruling is unfit for the SCT. It means that -- as in most affirmative action cases -- there is strong disagreement. I cannot recall a unanimous SCT ruling on affirmative action. I suspect this case will end up a 5-4 ruling. So, at least 4 justices will share Sotomayor's position.

Anonymous No. 2: I am not trying to "cram" anyone anywhere. She deserves honest analysis and criticism, just like anyone else.

Jonathan Zasloff said...

Hi Darren--

A superb takedown. Well done.

Of course, you know the denouement. If Obama appoints her, then he has "caved" to the radical left. Fortunately enough, the public seems more concerned at this point with the economy than with the fever swamps of the far right.

Glenn Greenwald came up with a great nugget on this: Rosen's brother-in-law is Neal Katyal, who stands to become SG if Elena Kagan is appointed to the seat, and just happens to be a former 2d Circuit clerk -- the description of Sotomayor's anonymous trasher.

Anonymous said...

One small point: Ralph Winter is not a former 2d Circuit judge, but a senior 2d Circuit judge. He still hears cases.

Darren Lenard Hutchinson said...

Jonathan - Hi. How are things? Thanks for the comment!

Anonymous: Wow - Winter is still hearing cases. Thanks for the post.

Anonymous said...

Obama was not given the "affirmative action" treatment and a Puerto Rican male with her credentials considered for SCOTUS would not get the same treatment from Rosen and Yglesias. The problem in this case is sexism not racism.The problem in your case is a fallacy of contrary-to-fact hypothesis. People who make an argument based on an unsupported claim as to what would or would not happen go into my "grossly intellectually dishonest" bucket.

Darren Lenard Hutchinson said...

Anonymous: "grossly intellectually dishonest" versus sexism or racism. Either way: not good.

Adam said...

donnadarko: Obama went to Columbia as an undergraduate (after transferring from Occidental College) and Harvard Law School. What "inferior" schools are you referring to?

FLRN said...

Professor - Strong work as it seems you are noted everywhere in the news today -
Jake Tapper nods to you on
Greenwald's, Instapundit and the New York Times

Anonymous said...

I agree with your assessment of Rosen's article generally, and his misreading of U.S. v Juncal cannot be justified. I disagree, however, with your assertions concerning clerks. You chide Rosen for interviewing "former clerks for other judges, rather than defense attorneys, litigators, and Sotomayor's own former clerks," and then argue that "the use of clerks to determine whether a judge should receive a Supreme Court nomination is extremely problematic [because] [m]ost 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."

The problems with your arguments are several. First, I think your argument concerning clerks generally is overstated. Clerkship standards for the Second Circuit are high, and those clerks are generally (although not absolutely) well-equipped intellectually to assess the quality of a judge's work. I know a lot of practicioners with plenty of experience who have trouble performing tasks easily handled by those who have completed clerkships. And, as a corollary to this point, you completely ignore the fact that it does not take a law degree to determine whether someone is an autocrat, diva, or otherwise. Indeed, if experience is any guide, my guess is that clerks are far more knowledgeable regarding a judge's temperment than the attorneys appearing before him or her.

Second, regardless of whether a clerk admires/loves/disdains/hates his or her judge, he or she may be unwilling to dish specifics for fear of being identified, or because he or she feels duty-bound to maintain confidentiality notwithstanding the rampant gossipping with other clerks which happens all the time. Rosen's failure to include comments from Sotomayor's clerks is thus paradoxically inexcusable and understandable -- I'm not sure we would, in any event, get better information.

Alex said...

I have read both the Samaria case and footnote from Judge Winter's opinion, and I am having difficulty understanding how anyone (especially a law professor) would suggest that Sotomayor's opinion misstated the law in the 2d Circuit. Indeed, I think a more accurate description of the footnote is that it mischaracterizes (and that would be putting it charitably) the discussion in Samaria. The discussion about conscious avoidance in Samaria has nothing to do with the sufficiency of the evidence. (See Samaria ("Because we find that the government has not presented evidence sufficient to prove the requisite specific intent, we need not reach the further issue of whether conscious avoidance could have been inferred from this evidence, and, if so, whether the jury was properly instructed."))

In short, all Sotomayor did was explain that even if the evidence established that the defendant acted with conscious avoidance, that is not enough to establish that the defendant acted "intentionally." And that was nothing more than a reiteration of 2d Circuit law. (See Samaria's citation to United States v. Mankani, 738 F.2d 538, 547 n.1 (2d Cir. 1984)).

Anonymous said...

The smearing of Neal Katyal in the comments thread is unjustified on many grounds. First, there are inaccuracies. The key one is that Katyal DOES NOT stand to become Solicitor General if Elena Kagan becomes a Justice. The President COULD nominate Katyal, but he could nominate anyone else too. Katyal's current position is not a presidential appointment and did not require Senate confirmation. There is neither automatic nor presumptive elevation of the Principal Deputy to SG. It does happen that Greg Garre and Paul Clement moved from Principal Deputy to SG, but most of their predecessors did not.

Second, the comment string is a bit confused, but there seems to be an assertion that Neal Katyal clerked for Ralph Winter. He did not. He clerked for Guido Calabresi (and then Stephen Breyer).

Third, although it is true that Neal Katyal is Jeff Rosen's brother-in-law, it is ludicrous to suggest that Neal Katyal would engage in Machiavellian tactics to scuttle Sonia Sotomayor's possible nomination for his own personal gain, even if it were true that he stood to gain. Neal is ambitious, no doubt. But he does not take cheap shots to further his own career.

Anonymous said...

Your post is interesting and persuasive, but I'm curious why you say that "Sotomayor clearly did not author the "per curiam" ruling" in _Ricci_. Isn't it inherent in the nature of per curiam rulings that it isn't revealed who authored them? Doesn't that mean that anyone (other than the dissenting judge(s) if any) might have authored them?

What am I missing here?

Darren Lenard Hutchinson said...

Hi, Anonymous, I meant to convey that because there is no official author, she clearly is not "the author" (of record). Behind the scenes, any number of possibilities could exist (co-authored, single author, etc.). Thanks for the point. Sorry for any confusion.

Anonymous said...

I am not convinced that Rosen interviewed anybody at all. They were all unnamed anonymous sources, and TNR has a history of plagiarism.

Darren Lenard Hutchinson said...

I make no claims or reflections on TNR and plagiarism, but, aside from the misstated footnote, the original article is virtually identical to her her AFJ profile.

Anonymous said...

Hey Donna,

Still going on with how race is never in the equation, it's always sexism huh? Not like we've never heard that latinos are "fiery", "impulsive", and "tempermental". Your contempt and resentment of men is so perverse that it has retarded your ability to recognize the racism in this attack on Sotomayor.

Anonymous said...

Some people can't understand that racism and sexism work in tandem and overlap when the subject is a minority woman. I would also add classism as an element here. Rosen suggested that Sotomayor doesn't know how to "behave" and that she is not intimidated by institutions of power. Why wouldn't a woman who graduated from Ivy League schools and who has been a judge since 1991 know how to behave? And why should she be "intimidated" by anybody?

Rosen's subtext here is that despite Sotomayor's accomplishments, she's just a low class Puerto Rican from the Bronx who doesn't know her place and who would be out of her element on the Supreme Court.

But what he really fears is that Sotomayor might not be intimidated by the white Justices on the Court. He's afraid that she won't DEFER to them.

He fears a strong Puerto Rican (or any minority) who doesn't have a psychological makeup that allows herself to be used and manipulated.

Darren Lenard Hutchinson said...

"Rosen's subtext here is that despite Sotomayor's accomplishments, she's just a low class Puerto Rican from the Bronx who doesn't know her place and who would be out of her element on the Supreme Court."


Anonymous said...

It's because she's Latina and a woman but Rosen and Yglesias would not have said a word about a Latino male with her credentials considered for SCOTUS. In other words, there would not have been a problem if Sotomayer were a Latino male. There is only a problem when sexism kicks in in addition to racism. A Latino male with her temperament would also be called "passionate, exciting and fiery" and fiery would work in the favor in the man's case. Men of color like Obama and the hypothetical Latino male get bonus points for being a minority. We saw during the election that being a minority gives men of color a free pass and bonus points. When you add gender or even if you're a white woman like Clinton or Palin running for President or Vice President, there is a problem.

Obama went to inferior schools compared to Sotomayer. I also said in my first caomment Sotomayer was superior because she went to superior schools compared to Obama.

--donna darko

Darren Lenard Hutchinson said...

Donna Darko - Sometimes racism and sexism create unique experiences for women of color, sometimes they do not. Another comparison could involve Kagan, Wood, and Karlan, who have not faced the treatment that Sotomayor faces. The "fiery" unthinking Latina sterotype is real. Certainly, there are gendered stereotypes that impact white women in similar ways. But consider this: Clinton was considered a "bitch" but not a "dumb bitch."

I would not use Obama's case to illustrate the experiences of all men of color. Obama used his gender and silence on race (minus the Philadelphia speech) in order to appear nonthreatening to whites, especially white men. Clinton could not overcome the gender problem. I think that this is a unique area where it is really difficult to overcome the gender card. Even if you are smart, you are considered a "bitch." But this does not negate the operation of race. Sotomayor is being described as a hot, firery, unthinking Latina.

I recommend to you the work of Audre Lord -- especially the book Sister Outsider. I have written on these issue in the GLBT context. Discrimination is multidimensional.

Anonymous said...

Are you seriously suggesting that men of color get a free pass in America?

Who are the biggest casualties in the "war on drugs" Donna? Men of color.

Who have the highest incareation rates relative to their population Donna? Men of color.

Who have the lowest academic acheivemnet levels Donna? Men of color.

Who have the shortest life expectancies Donna? Men of color.

Who are overrepresented on death row Donna? Men of color.

In every metric we use to determine success in an industrial nation, men of color lag behind women. What does this mean to you Donna, is this the "free pass" that you're talking about?

I'm sure the brothers in Detroit, Chicago, and Oakland will get a chuckle out of that "free pass".

Regarding the academic pecking order and inferior schools. Your voice here is very classist and elitist in nature, that's how your narrative reads to me. But I graduated from a Big Ten school school - so what do I know.

That you're seriously arguing that Columbia and Harvard are inferior to Yale is just....bizzare. Unless we filter this with the knowledge that Obama attended these schools.

If Sotomayar had attended Columbia and Harvard and Obama Yale, no doubt you would still contend that Obama attended the inferior school. The only variable here is gender, this is all that matters to you.

Of course Sotomayor attended the superior school, she's the woman!!

I'll just come out and say it, your sexism is showing.

Darren, spot on with Audre Lord. And Donna could also use some Bell Hooks and Pearle Cleage in her literary diet.

Darren Lenard Hutchinson said...

Yes -- Bell Hooks, Ain't I A Woman; Feminism from Margin to Center.

Anonymous said...

Contrary to the oft repeated suggestion, Judge Sotomayer, upon taking her seat on the Court, will not be the first Hispanic to do so. That privelege belongs to Justice Benjamin Cardozo.

Anonymous said...

Judge Cardozo self-identified as Jewish, and those of Portuguese background are not considered Hispanic.

Anonymous said...

I'm only a "layman" in this argtument, but if the argument is about Judge Sotomayor and her being of a minority group besides being female, and of lower middle class, I can suggest a candidate who is male and upper middleclass: J. Eddie Grau of Guayama, Puerto Rico'sSuperior Court. If it's not a matter sexism, Judge Marchand Paz, also from Guayama, might have a daughter who could also be a judge and they are from upper middle class if class is a concern.

BasiaBernstein said...

When I was at BPP studying my famous law professors the, vast, majority of my class at Holborn had TCs. I can't speak for Waterloo though, didn't know anyone over there but did here that the situation was almost the opposite. Really strange.

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