Thursday, May 7, 2009

Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"

Latest Analyis: Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"

Jeffrey Rosen has responded to the surge of criticism regarding his harsh "evaluation" of Judge Sonia Sotomayor. Although I criticized Rosen on many grounds, my critique of his misrepresentation of a footnote authored by Judge Ralph Winter has received a lot of attention on this blog and elsewhere.

In his original essay, Rosen contends that Winter's footnote accuses Sotomayor of misleading lawyers regarding the status of legal doctrine in the Second Circuit. But nothing in the footnote even vaguely supports Rosen's assertion. In fact, Professor Michael Dorf, a highly respected constitutional law scholar, concludes that Rosen's analysis of the footnote lacks merit. Dorf, who has written the only analysis I have seen that seeks to rehabilitate Rosen, contends that:

[A]s Darren Hutchinson nicely explains. . ., Judge Winter's footnote does not at all say that Judge Sotomayor misstated the law. The footnote says that lawyers were misrepresenting the Sotomayor decision. . . .Indeed, Judge Winter's footnote is not subtle about this. . . .

It's crystal clear, is it not, that Judge Winter is chiding the advocacy, not the judges who decided the Samaria case? This is so elemental, as Hutchinson notes, that one gets the feeling that Rosen himself must be incompetent.

Despite the plain language of Winter's footnote, Rosen defends his original reading of it by stating that the footnote lacks clarity:
Some readers have questioned my account of how "a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor [United States v. Samaria] might have inadvertently misstated the law in a way that misled litigants." Indeed, the footnote is hardly a model of clarity-and I can see why readers might not come to the same conclusion I reached.
The text of Winter's footnote, which Rosen noticeably has yet to engage, does not support his effort to portray it as ambiguous.

Perhaps implicitly conceding that the text of the footnote does not support his description of it, Rosen states that anonymous sources in the Second Circuit told him that people assumed that Winter intended to criticize Sotomayor in the footnote:
But the careful observers of the Second Circuit I talked to, who were familiar with the case, said Winter was widely assumed to be making an effort to be polite, avoiding direct criticism of his colleague while trying to distinguish Sotomayor's holding in Samaria from some loosely written dicta. In their view, Sotomayor's dicta in Samaria could indeed be read to call the earlier cases into question, just as the litigants suggested, and they believe Winter was trying to contain the damage to avoid embarrassing his colleague (emphasis added).
I have read the footnote many times -- as well as the case in which it appears. I have also read Sotomayor's opinion in Samaria, which was unanimously decided by the three-judge panel. Winter's footnote simply does not support Rosen's analysis. Also, Sotomayor's opinion does not support the lawyer's interpretation of it, which is why Winter summarily dismissed the argument. Furthermore, absolutely nothing in the text of the footnote makes it "unusual." Judges frequently dismiss arguments that misinterpret precedent. This is as common as oxygen.

Most lawyers quickly learn during law school and in the early stages of their legal careers that it pays to read cases in their entirety, rather than plucking sentences out of context and using them to support a particular proposition. No reasonable lawyer who reads the entire Samaria ruling could use it to support the conclusion that Winter's footnote rejects. The fact that Winter relegates the discussion to a footnote demonstrates how "seriously" he took the argument.

Rosen's anonymous sources do not even document his argument that Winter actually intended the footnote as a criticism of Sotomayor. Instead, Rosen only confirms that they said it was "widely assumed" that he did. This is not solid journalism. The Second Circuit is a massive enterprise. Rosen's sources cannot have personal knowledge of the widely held assumptions of the Second Circuit. His reliance upon their views (and we do not even know how many people reported this "assumption") is problematic.

Closing Thoughts
At this point, readers must choose among Rosen and his anonymous sources and the plain language of Winter's ruling. For now, I'm sticking with the latter. The fact that Rosen wants his readers to believe the sweeping statements of anonymous sources rather than public documents confirms his critics' belief that his essay relies primarily on gossip.

Rosen's citation to the notorious lawyer comments section of the Almanac of the Federal Judiciary (as evidence that Sotomayor is mean) only heightens the concern that he is not producing serious analysis. The AFJ is not used to evaluate judges for judicial appointments. Instead, the very thorough vetting process of the American Bar Association is a much more widely accepted measure of judicial talent.

The 1997 ABA report on Sotomayor states that a "substantial majority" of respondents ranked her as "well qualified" -- the highest possible ranking. A minority stated that she was "qualified" -- the second-highest ranking. Rosen has yet to mention Sotomayor's ABA rating. Instead, he prefers to use comments from the biased sample of people who called him to discuss Sotomayor as evidence of her performance.

Finally, after two essays, Rosen still has not analyzed one opinion written by Sotomayor. This glaring omission completely undermines his evaluation of her.

Note: Glenn Greenwald has responded to Rosen's response with a very passionate analysis.


Roberto said...

excellent job, sir.

Bluster Brown said...

Thank you for this astute and very necessary analysis, Prof. Hutchinson.

Darren Lenard Hutchinson said...

Thanks for commenting Roberto and Bluster Brown.

Anonymous said...

Not to mention that "she's mean" is an extremely common sexist and baseless accusation against accomplished women. I mean, who knows a judge who hasn't been "mean" to one litigant or another. You can't be respected as a judge if you don't put people in their place sometimes, or dismiss their arguments as frivolous, or cut them off, or ask pointed questions, or any number of things that could be considered "mean."

As someone who participated in the clerkship process (albeit as a lowly district court clerk) you know who the judges with a reputation for being REALLY mean (virtually impossible to work for) are, and I've never heard that, or any suggestion of that, about Sotomayor.

Anonymous said...

Yes, yes, and yes. One other point is worth making, though it is among Rosen's lesser included offenses. For Rosen to cherry-pick anonymous lawyer comments from the AFJ (while not actually, um, reading any of the judsge's opinions) is jounralistic malpractice piled upon journalistic sloth. It is one thing to quote anonymous sources that the journalist has actually talked to (thus giving the journalist some sense of the gossiper's credibility). It is quite another to take some anonymous comments from the AFJ and try to parlay those as damning evidence. (I'm not defending the use of anonymity here, as that was itself clearly improper and unjustified, but simply demonstrating that while there might be some meager defense offered for granting anonymity to the "clerks of other Second Circuit judges," those defenses will not work for the AFJ crap.) And, if Rosen wanted to use the AFJ as a barometer of the judge's temperament, he might think about comparing Sotomayor's reviews as against reviews of other judges to see whether the lawyers' reactions to her were atypical. I don't think they are. There are lots of judges that get anonymous reviews from lawyers that say the judge is mean or hard on counsel. Many are, and some with good reason (too many lawyers ill-prepared bufoons and too many refuse to answer the judges' questions).

Anonymous said...

So let's recapture. In his piece there were two instances that could be factually checked: the footnote and the Carbanes-quote in the NYT. It's clear he has misrepresented the footnote. It's also clear that he deliberately carved out Carbanes quote to give the impression that he supported Rosen's point that Sotomayor was "not that smart and kind of a bully". Yet the full quote makes clear Carbanes was making a compliment: she was smart and tough and tenacious and not intimidated by status or power.

Given this, how do we know he did not misquote and misrepresent his "anonymous" sources as well?

Darren Lenard Hutchinson said...

In a new post, I compare Scalia's and Sotomayor's "temperament" evaluation by the AFJ. Interesting. Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"

Anonymous said...

As a law professor, isn't it unethical of Rosen to publish such an article? It definitely isn't illegal, but shouldn't actions like this be brought up in front of the ABA ethics committee, or state or local committees?

Anonymous said...

The more I think about this the worse it is. Rosen isn't just saying Sotomayor isn't qualified to be a Supreme Court Justice, he's saying she's not competent for the job she has. He's saying a sitting judge is incompetent, based on no research. He is giving his imprimatur to the claim that Sotomayor is incompetent. How can this not be a matter for the bar to take action on? If he wants to assert a truth defense let him. He shouldn't be able to assert lack of knowledge. By passing on the claims he has implicitly certified their validity. If he questioned the validity the claims shouldn't have been made.

Darren Lenard Hutchinson said...

Anonymous I and II raised the question of ethical issues. I do not think this violates any professional responsibility codes -- although I recently read a law review article that analyzes whether attorney comments regarding judges could serve as the basis for misconduct proceedings. There are First Amendment issues involved.

Another thing bothers me about the footnote analysis. Appellate cases are decided by a 3-judge panel. If we accept Rosen's portrayal of the footnote and Samaria, then Winter was really going after 2 other judges in the Second Circuit. So, a total of 3 judges supposedly engaged in such horrific analyis, that Winter had to author an "unusual" footnote only going after one of the three -- and it was "widely assumed" in the Second Circuit that Winter was shaming a 3-judge panel. I suspect that the likelihood of this being true is close to zero, in my opinion.

Anonymous said...

Well Professor,I disagree with your analysis. Why did Judge Winter have to write that footnote in the first place? What was a point of this footnote? Was it just to say that the litigant there misunderstood the governing precedent? Doesn't every case have at least one litigant who misunderstands the governing precedent? ...And I don't see judges writing similar footnotes. I will go with Rosen on this one.

Darren Lenard Hutchinson said...

Anonymous: How many judicial opinions have you read? Judges constantly state that litigants have misread precedent. In fact, that is what legal analysis is all about. Because court rulings are based on precedent, parties advance prior cases as standing for a particular meaning. Usually, someone is going to get it "wrong" (because both sides cannot be right on the implication of the precedent to the case at hand). Accordingly, courts and lawyers constantly DISTINGUISH precedent from the current case at hand. This is something that is taught to first-year law students at every law school.

Feel free to go with Rosen in believing that this is unusual. You and he are wrong.

Anonymous said...

Professor, can you please cite one court opinion where there is a similar footnote. If you do, I will gladly agree with you. I admire Judge Sotomayor's life story a lot, and I wish Prof. Rozen was wrong. However, having read quite a few cases, I never seen any similar footnotes. Usually courts just say what correct principle of law is, without telling the litigants they misunderstoodd this or that case.

Darren Lenard Hutchinson said...

Anonymous, it is clear that you are not a lawyer (or a well read one). Or maybe you are just fishing for someone to research the issue for you. Nevertheless, judges do this all the time - usually in the body of the opinion. When they drop footnotes, it's probably because they do not even want to go too deeply into the matter.

Against my better judgment and just off the top of my head, I can think of a number of cases where a court has said that a party misread precedent. In Lofton v Secretary of Dept Children and Family Servs., the court said that the plaintiff's interpretation of Lawrence v Texas precedent was "a strained and ultimately incorrect reading." In Gonzales v Raich, the majority said that the respondent intrepreted Lopez and Morrison "far too broadly." In Washington v. Glucksberg, the Court held that the plaintiffs' reliance upon broad language regarding personal liberty contained in Planned Parenthood v. Casey was misplaced and refused to extend the sweeping language to cover physician assisted suicide. In Bowers v Hardwick, the Court said that respondent misread the Court's "right of privacy" opinions.

And when you have dissenting opinions, then judges may even go after each other for "misreading" precedent. In Raich O'Connor and Thomas's dissents took issue with the majority's reading of precedent. O'Connor said that "I cannot agree" with the majority's interpretation of the relevant cases. Probably the most passionate dissents that go after the majority for "misreading" precedent occur in Michael H. v Gerald D. In Michael H., Kennedy and O'Connor concurred with an opinion written by Scalia -- except for ONE FOOTNOTE in which he narrowly defined fourteenth amendment liberty. They said his view of liberty was "inconsistent" with prior case law. They later repudiated his view of the cases altogether in Planned Parenthood v Casey.

The liberal dissenters in Michael H. challenged Scalia's reading of precedent quite passionately (led by Justice Brennan). Brennan said that Scalia's statement of the law was "indifferent" to precedent, "more than novel," and misguided. Brennan's dissent said that Scalia's butchering of precedent turned the constitution into a "a stagnant, archaic, hidebound document steeped in the prejudices and superstitions of a time long past."

Again, these are just off the top of my head....Tah dah!

Darren Lenard Hutchinson said...

PS: Anonymous - conduct web searches with terms like: misread, misconstrued, or misinterpeted our precedent, decisions or rulings, and you will find a host of opinions in which judges accuse litigants and other judges of misreading precedent.

Anonymous said...

Professor, thank you for the cites. I will definitely read the cases you mentioned.

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