Thursday, May 28, 2009

Ilya Shapiro and Dana Milbank Float the "Dumb Broad" Stereotype

Ilya Shapiro and Dana Milbank have joined a chorus of dudes who have floated the "dumb broad" trope in their "analysis" of Judge Sonia Sotomayor. Ironically, while Shapiro pretends to condemn Obama's choice as rooted in identity politics rather than merit, his essay, which lacks any substantive review of Sotomayor's rulings, can only have credibility among people who are inclined to believe that a high-achieving woman of color lacks intelligence.

Jeffrey Rosen was originally responsible for giving this narrative heels in a discredited article that he has twice disclaimed. Nevertheless, Shapiro and Milbank have kept the fans going, and Shapiro even cites to Rosen's original analysis.

Shapiro and Milbank Say Much, Prove Little
Shapiro and Milbank fail for the same reasons that plagued Rosen's analysis. Neither has isolated anything in her writings that discredit her as a judge or intellectual. Shapiro says that Sotomayor has not issued any "important" decisions, but he never defines what this means. Even if one could define the term in this context, this would hardly disqualify her from the bench. While the Supreme Court has the luxury to take the "sexiest" and most compelling cases (because it has discretionary review for the most part), lower federal courts do not. They take cases as they come to them.

Also, during Sotomayor's tenure, the Second Circuit has not been the hotbed of judicial activity as the more ideologically partisan circuits, like the Ninth, Fourth and Fifth Circuits. It is more mainstream and tightly wrapped ideologically. Today's Second Circuit is not known for its blazing judicial battles. But the absence of opinions that provide dissertations on unresolved legal issues cannot mean Sotomayor is less qualified. The use of this standard would have rendered unqualified most of the justices in the Supreme Court's history.

I also find it disturbing that none of Sotomayor's negative reviewers demonstrates through independent analysis why Diane Wood or Elena Kagan -- persons whom Sotomayor is most often compared -- are more qualified to sit on the Supreme Court. Shapiro, for example, simply states that Sotomayor is "far less qualified for a seat on the Supreme Court" than Kagan or Wood. But Shapiro does not substantiate this claim by applying his own standards to Wood and Kagan. He does not cite to Wood's "important" decisions, and he does not review Kagan's articles that have reshaped legal analysis. Indeed, Kagan has a relatively thin publication record, given her acclaim and achievements, and many of her publications are in "home" journals (i.e., journals edited by students at the school where she was teaching at the time of publication), and significant portion are "tribute" articles that honor deceased jurists. Nevertheless, the popular analysis summarily describes Kagan as immensely qualified and Sotomayor as weak. What accounts for the difference?

I am not attempting to discredit either Kagan or Wood. Instead, I seek to reveal that Sotomayor's detractors have failed to make the case that she is an intellectual "lightweight" or that she is less qualified than others on the shortlist. Either her reviewers are sloppy journalists or they are moved to their positions by some motivation that has nothing to do with her work. Pick your poison.

I had originally intended to include Jonathan Turley on the list with Shapiro and Milbank. Earlier Turley stated that Sotomayor "is not the intellectual powerhouse that many academics had hoped for." He now says that:
Like a number of other professors and commentators, I have expressed disappointment in the fact that Sotomayor’s opinions lack of deeper view of the law or any particularly profound observations on the law. Conservatives, however, take this lack of depth in these opinions as evidence that Sotomayor is not smart or competent. This is demonstrably absurd.
His more recent analysis offers a more engaging approach.


Anonymous said...

Dear Mr. Hutchinson: Here's a challenge for you:

Richard Posner is a) a Circuit Court Judge and b) on the Right, though I couldn't pin down precisely where he is and c) an intellectual powerhouse.

Similarly Jack Balkin is a) a distinguished Yale Law Professor and b) on the Left in the same way Posner is on the Right and c) an intellectual powerhouse.

Set up both of these men as the Gold Standard for Justices, valuing both at 100. Where would Sonia come in on this scale? 20? 70? 50?

You've insisted that the citizenry should judge Sotomayor by her opinions and not by the anonymous calumniators of the Almanac of the Federal Judiciary or the fever swamps of Jeffrey Rosen's alleged mind. You are a law professor, far better suited to doing this than me, a layman. OK, go to it. I've given you two Gold Standards, Posner and Balkin. Compare Sotomayor to them, rating her on a scale where they both clock in at 100.

Next, tell us about the opinions Sotomayor has signed and maybe even written, that, in your view, show how she is qualified to be a Justice. I haven't seen you mention any that show Sotomayor as a bright star. Instead you keep telling us that we aren't viewing her remarks with enough subtlety, or that the result of opinions isn't really the result, it's the opposite. This is playing defense, which is essential to getting a nominee through confirmation, but isn't intellectually respectable. As you've said, the GOP is just as guilty of this practice. See e.g. Thomas, Clarence whom Bush41 touted as the most qualified nominee when he sent him up (why not send up Posner?) Or again, Thomas, claiming to have never discussed ROE beyond passing remarks before his confirmation hearings. Such jokes are funny, but the consequences often don't bear looking at.

I'm opposed to SS, and the short reason why is the "wise latina" remarks, remarks that she confirmed by allowing them to be published without any real revision. I have read the entire text of that speech, and still think it would be called racist had it been made by Sam Alito, with "white" and "Latina" flipped. It is worth noting that her fellow panelists strongly disagreed with her, on the spot, and she did not say at that time, Yes, I said that badly and withdraw my remarks.

She'll almost certainly be confirmed. This was guaranteed by the 2008 election. Given that, I think the GOP should follow at least part of the Democratic playbook and vote against her, say by at 64-36 vote. This will allow her to be beaten as unsuitable for years to come, just as John Roberts's 78-22 and Sam Alito's 58-42 votes are used to "prove" they are unsuitable for the Court.

This battle is lost, and there are much bigger fish to fry, e.g. North Korea's nuclear testing, Israel having to hold the line on nuclear proliferation by Iran all by itself, the seeding of a great inflation in the next two years, and the proposed destruction of the American health care system. Those battle may be won. Put SS on the bench and get on with business.

Sincerely yours,
Gregory Koster
(not of CUNY)

Darren Lenard Hutchinson said...

Greg, you are the only person who says I am not being intellectual in my discussion of Sotomayor. But then again, your views are usually singularly held on this blog. Anyway, I have stated over and over again that I believe nominations to the Court are political appointments, and that Presidents should have substantial discretion to make them (subject only to the Senate's advice and consent). Accordingly, neither I nor Obama needs to demonstrate that Sotomayor is the "best" jurist or to compare her to others. Bush did not have to do this with Alito and Roberts. All of these individuals were clearly qualified based on their prior work and evaluations of their colleagues, and that's about all I or anyone else needs to know.

I also think it's difficult to compare judges and academics. Many academics have never written opinions, and many judges have never written serious legal scholarship. Law review articles permit a far deeper and more intellectual elaboration of the legal issues in a case -- particularly if they touch upon constitutional law. There is an ancient rule in constitutional law that cautions against even discussing constitutional law issues unless they are essential for deciding the case. Also, law review articles are almost always a solo project, while appellate rulings require forging a consensus. Accordingly, it is unhelpful to compare judges with law professors. Instead, I have ranked the law professors and the judges on Obama's shortlist.

I certainly would have picked other persons as representing the "gold standard," although both Balkin and Posner are respected. If I ruled the world, I would pick academics like Reva Siegel, Martha Fineman, or Christopher Edley for the Supreme Court. They are all powerful scholars. With respect to judges, I would pick Sotomayor, Amalya Kearse (when she was younger), Thelton Henderson (when he was younger), or Judge Norris (when he was younger). I believe that Sotomayor ranks among all of these judges.

The best thing about her rulings is her ability to tie just about any issue tightly around precedent -- which liberals sorely need! For example, she dissented in a felon voting case because the "plain meaning" of the statute applied to "any" rule that dilutes the votes of racial groups. Sotomayor linked her ruling to the principle of judicial restraint, which conservatives pretend to appreciate. The Washington Times, however, has disapproved of this ruling.

I also appreciate her "Free Speech" cases -- which the SCOTUS blog has examined. Her writing is absolutely unimpeachable. It is the type of product that liberals will need to emulate if they get a majority on the court.

I rarely believe that judicial opinions are "brilliant." Most of the brilliance, I believe, occurs behind the scenes. Having said this, Sotomayor's rulings are beautifully crafted. Some lay persons have called them "boring," but opinions are, by nature, narrow and boring. Every case is not headline news. And Scalia's are only interesting because of his bombastry. Sotomayor does not inflate her rulings with theatrics.

I hope this helps, but I know it won't. Enjoy anyway.

Anonymous said...

Dear Mr. Hutchinson: I picked Balkin and Posner because they are well known. I don't know any of the judges/academics you chose. But I didn't pick B&P as nominees. I picked them as well known legal folks whose brainpower and energy are unquestioned, and asked you to compare SS to them IF we rate B&P at 100, where would SS come in at? Such a comparison would undoubtedly be subjective and easily disputed. But for the laity, of whom I am one, who isn't familiar with her work, what's the criteria we should use to make up our minds? In some of your other posts, you present cases (and many thanks for putting that roundup of all your posts on SS. That's a help), but you surely didn't when presented with an opportunity. You wrote that she dissented in a felon voting case. What's the case name? I could go from there, but I need that cite.

You write that her writing is unimpeachable. It might be so, but where's the cite? The "wise Latina" article points the other way. Argue if you must, but when she is asked about this article in her hearings, will she say "Yes, I believed that then, and I believe it now." No.

You are right about opinions generally not being brilliant and dazzling. Byron White once told one of his clerks, "You write very well." Pause, then the zinger: "Justice Jackson had that problem too." Scalia's coruscations occur far more in dissents, which aren't written to corral a majority and don't have much precedential value compared to a majority anyway. You seem to think that I would rate Scalia at 100 on the B&P scale. In some aspects, yes, but his overall rating would be less. As you've pointed out, he'd rather be bombastic and have a high profile than get a majority.

"Sotomayor's rulings are beautifully crafted." You might be right. Give me a cite to an opinion she wrote that is "beautifully crafted."

I wish you would expand on this comment you wrote:

"The best thing about her rulings is her ability to tie just about any issue tightly around precedent -- which liberals sorely need!"

All that does is confirm my dark suspicions that liberal judges don't care a bit about law or precedent, considering cases as just so much putty to mold the way this week's NATION editorial decrees. Surely that is not what you mean. I hope.

You are right, no one really believes in judicial restraint, though conservatives pay lip service to it, and liberals do when the odious ROE opinion comes up, calling ROE a "super precedent" as that noted jurist and chameleon Arlen Specter said of it. It's just that disbelief that fuels my conviction that the judicial branch of government badly wants reining in. Legislatures can (in theory at least) reverse their mistakes. But judicial blunders are a good deal harder to undo, e.g. PLESSY v. FERGUSON. Hamilton thought the courts were the least dangerous branch because they lacked the power of the purse or sword. The disastrous attempt at school busing should cure anyone of that belief. MARBURY should have cured Hamilton of that belief.

We seldom agree, but at least we aren't heaving actual grenades at each other. Our artillery is rhetorical. Many thanks.

Sincerely yours,
Gregory Koster
(not of CUNY)

Darren Lenard Hutchinson said...

Two things:

First - My statement that liberals need a "doctrine" judge is NOT a concession that liberals do not care about precedent. It's actually a much different point. If a liberal majority takes over the court -- which could only happen with probably 8 more years of Democratic presidents after Obama -- then liberals will need a doctrine person to deal with the transition. Rehnquist and O'Connor did a lot of the "we are overruling" cases from the past. They were not always clean, but they got the job done. Of course, you only believe that conseratives "apply" "the" law. You might be shocked to learn that much of what the Rehnquist Court accomplished was in fact an altering of the law.

Second, you might be shocked to learn that within academia, people do not have universal ideas of "gold standard" professors. And being well known does not translate into intellectual rigor. Kagan is highly well known, but her scholarship trail is very light. So, I went with intellectual powerhouses. Google these people. Often the least well known to the public are indeed to most powerful intellectuals.

PS: There are a lot of brilliant profs that I did not include on my court list - because I do not see them as liberal.

Darren Lenard Hutchinson said...

Greg: When was the last time you gave a Court nominee a "presumption of unfitness"? Did you search for just "one case" to "make up your mind" with Roberts or Alito?

In my memory, only Thomas, Miers and Sotomayor have been accused of being "dumb." The pattern is pernicious. Of the 180 white men who have served on the SCT, I do not recall their confirmations being riddled with the "dumb" trope. But with the handful of women nominees and nominees of color, there's a high rate of usage of that line. Liberals did it with Miers and Thomas. And conservatives are doing it with Sotomayor.

Funny: Conservatives did not call Sotomayor dumb when she was being appointed to the Court of Appeals. The SCT only hears 1 percent of all appeals, so the Circuit Courts have a great deal of power shaping law. Why put a dummy on the Court of Appeals? This "argument" is getting too foolish to merit a response. Rosen's debunked article started this mess, and rightwingers have been repeating it over and over as if it were true. Do YOU have any proof that she is indeed dumb -- other than the words of Rosen and conservatives?

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