In the New Republic, Jeffrey Rosen gives voice to a concern that’s been gathering over one of President Obama’s shortlisted judicial names:
The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”) …
Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for examples, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions–fixing typos and the like–rather than focusing on the core analytical issues.
Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained “no reference whatsoever to the constitutional issues at the core of this case.” (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.)
28 responses so far
1 krove // May 4, 2009 at 5:42 am
This is ridiculous. You are quoting an unnamed gossipy third party to argue against an appointment that has not been decided. How lame is that?
Why not just dig dirt on all the judges in the country. Or well just wait til the choice is made known instead of tilting at windmills. It’s making you look like Don Quixote
2 danbmil99 // May 4, 2009 at 5:56 am
Sounds like she should get along fine with justice Thomas.
I have to admit, the liberals shall reap what they sowed on this one. They have by and large been more inclined to politicize this process.
Then again, whoever O appoints will be confirmed, so I’m not sure what the GOP gains by further antagonizing women or latinos with a long, painful bashing of the candidate.
3 Bulldoglover100 // May 4, 2009 at 7:15 am
Nice…David Frum is suppose to be one of the voices of reason during this time of GOP idiocy and I open my New Majority to see a headline that makes us appear as school yard kids ranting about the bully?? Seriously? with all that is going on right now this is what we think is important? WHO hasn’t had an UNDERLING whine about the boss???? and yet this is what is suppose to pass as helping us on the right path????? *Imagine what the other side could say…George H.W BUSH appointed this BULLY in the first place!
4 sinz54 // May 4, 2009 at 7:20 am
krove: When Sandra Day O’Connor announced her retirement, you Lefties did “opposition research” on many possible judges that Bush could have appointed to fill her seat. The pushback from feminist orgs like NOW and NARAL began almost immediately.
So stop playing “holier than thou.” There are so many hot-button issues for the Supreme Court, ranging from social issues to war powers, that this is a political fight, just like every other appointment since Bork. You know that, you just don’t want to say that.
If Sotomayor is “not that smart,” then she’s a worthy successor to Souter, who voted liberal but never made a real name for himself on the bench.
She would be far preferable to a radical black activist like Thurgood Marshall, or an extremist left-wing loon like William O. Douglas. She sounds relatively harmless, in other words.
5 Bulldoglover100 // May 4, 2009 at 7:42 am
Sinz54..and we must all remember that she was appointed by a Republican, George H.W Bush.
6 ottovbvs // May 4, 2009 at 8:16 am
I detect a little legal politics in Rosen’s critique. Before swallowing hook, line and sinker what he says take a look at some his previous writings. Either way I’m sure this is all well known to Obama’s legal vetters and the degree of substance to attach to it. He himself having taught constitutional law at one of the best schools in the country is unusually for a president well equipped to form a personal judgement. I’m personally coming to view from what I’ve read that it will be Kagan but we’ll see.
7 krove // May 4, 2009 at 8:33 am
Baloon Juice said this about Frum and NM
“Say what you will about David Frums New Majority (possible motto: Same bad ideas, but with less hate!), he certainly seems to understand something about Obama that the rest of the Republican party has not figured out:”
Well worth reading the 350 comments.
http://www.balloon-juice.com/?p=20719
8 tarazeigler // May 4, 2009 at 8:40 am
To borrow from Barker13 (an homage, if you will): *shrug*
This whole piece reads like a gossipy girl and doesn’t contain much of substance. I get it: Everytime a Supreme Court justice retires, the opposition party starts wringing their hands over the possibilities. Lefties did it when O’Connor left and now NM is engaging in the same silliness. To what end, exactly? Unless you have something of substance to report, move on.
9 ireign // May 4, 2009 at 9:21 am
After reading some of the liberal commenters on this blog, I feel a lot better about being a Republican.
It is obvious that most of you have no idea how to use google to find out who Jeffrey Rosen is and have no idea what The New Republic (TNR). Jeffrey Rosen is a George Washington University Law Professor who is TNR’s legal analyst. TNR is a liberal magazine that was Clinton’s magazine of choice and Rosen is a liberal law professor. This is an attack on Sotomayor by fellow liberals.
Bulldoglover100-”and we must all remember that she was appointed by a Republican, George H.W Bush.”
Once again, she was appointed based on Senator Moynihan’s recommendation and was part of a compromise. This happens all the time. I suspect that some of the 34 judges referenced by Senator Arlen Specter will end up being approved by Obama, that hardly makes them liberal.
Tarzeigler-It is pretty substantive that at least a few of Sotmayor’s clerks have negative things to say about her. More than likely her clerks were also very liberal and they have a vested interested in seeing her appointed to the Court because it makes their clerkship more prestigious. It is very unusual for former clerks to criticize their judge, anonymously or otherwise. Alito and Mukasey had liberal clerks sign letters of support for them and not a single former clerk said anything negative about either one of them when their appointment was pending.
10 Bulldoglover100 // May 4, 2009 at 10:00 am
First of all “ireign”..which you don’t by the way but that’s beside the point, please do not attempt to lable me while you assume to understand the point of my post. I am not a liberal. Never have been. I am a moderate Republican and always will be. I’m White, Christan and over 50 hon so have dealt with little minds such as yours for years.
My point as to her being nominated to the bench was that while David Frum may put up a whining, childish post about her being a bully..LOL…. if that is true then A must follow B…hence a Republican President, George H.W Bush MUST have appointed a Bully into a court of Law….
My Point, which apparently was above your level of education, was that for us to whine about a possible appointment by Obama when WE appointed her first? Is self defeating to the party yet some, including you, don’t seem to be able to connect the logical dots….
11 barker13 // May 4, 2009 at 10:30 am
Re: Tarazeigler; 8:40 AM –
(*SMILE*)
Yep.
Heck… I thought Karen summed it up pretty well with her 5:42 AM post.
And… just as a general comment… I’m in TOTAL agreement of her critique of “unnamed third parties.”
“…an elderly judicial colleague is said to have…”
(*SMIRK*)
“…as one former Second Circuit clerk for another judge put it…”
(*ROLLING MY EYES*)
“…are viewed by former prosecutors…”
(*SIGH*)
“…several former clerks complained…”
“Some former clerks and prosecutors expressed concerns…”
(*GRITTING MY TEETH*)
“…a conservative colleague, Ralph Winter…”
(*CLAP-CLAP-CLAP*)
Thank God! FINALLY… a name… a citation…!
Tara’s right. Little of substance.
BILL
12 tarazeigler // May 4, 2009 at 10:35 am
How is it that any criticism at all makes one a liberal? That, to me, is the most irritating thing about this site: many of the commenters seem absolutely uninterested in having any kind of substantive discussion without resorting to name-calling. I find this so irritating that I feel no need to broadcast my political bonafides. You want to think I’m a liberal, ireign. Go nuts.
I really could care less what Jeffery Rosen does for a living. My point is that this article is incredibly weak as an “case against” Sotomayor. In fact, Rosen tells us that at the end of the article. In case you didn’t actually follow the link, here is a sampling: “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.” This line alone, should have disqualified the article for consideration. If that didn’t do it, he spends the article’s first few paragraphs making the case FOR her (a theme he returns to in the second to last paragraph.) Poor writing by Rosen and poor vetting by Frum – guess that makes me a liberal. Yeah, that makes a lot of sense.
13 tarazeigler // May 4, 2009 at 10:38 am
Whoops! Sorry for the repeated comment. I guess my computer was feeling pretty vehement about the point!
Barker13: excellent critique!
14 ireign // May 4, 2009 at 12:00 pm
Where do I start. Unlike most of you, I have a job but I will try and be brief:
Bulldoglover-”My Point, which apparently was above your level of education, was that for us to whine about a possible appointment by Obama when WE appointed her first? Is self defeating to the party yet some, including you, don’t seem to be able to connect the logical dots….”
Actually, it is no way self-defeating for a party to do this. As Democrats mentioned while alluding to the possible appointment of Alberto Gonzales to the Supreme Court, there is a different standard for the high court. There were possible Supreme Court nominees under Bush that were approved 100-0 at the lower court level that Democrats said were non-starters. The fact that Bush appointed her as part of a compromise and at time when she was considered more moderate is of little consequence except to people like you.
You obviously know very little. I would be happy to compare my academic credentials to yours. Please let us know your highest level of education and whether your alma mater is even ranked US News.
And yes, anyone who refers to this “time of GOP idiocy” does not have particularly strong GOP credentials.
tarazeigler-It is not gossip. Rosen brought up some matters of concern (which require further investigation) which if you were a lawyer would be problematic and at least something to look into. Rosen didn’t say “don’t support Sotomayor.” He pointed out that some of those who had worked under her, had some concerns about her being nominated to a Supreme Court position.
Barker-You are obviously not a lawyer and thus don’t realize that it is pretty damning for a clerk to say these things. It doesn’t mean that Sotomayor shouldn’t get nominated or approved but it does mean that some of the complaints warrant some investigation.
As I noted previously, the clerks have a vested interest in seeing her appointed to the Supreme Court. The fact that some have significant doubts is surprising.
15 barker13 // May 4, 2009 at 12:21 pm
ReL ireign; wrote 8 minutes ago –
Hey, Ireign… ya ever think of abdicating – before your regime is toppled…?
(*GRIN*)
“Unlike most of you, I have a job…”
Cute!
(*AMUSED SNORT*)
Next…??? Get ‘em out of your system, your majesty…
(*WINK*)
“Barker – You are obviously not a lawyer…”
Ahh… but I play one on TV! (*WINK*)
I was a reporter for awhile and I never would have depended upon unnamed sources the way Rosen did. I’ve also been an editor and if Rosen’s copy had crossed my desk… (*SNORT*)… suffice it to say that he’d have been doing some serious re-write work.
(*WINK*)
“Barker – You are obviously not a lawyer and thus don’t realize that it is pretty damning for a clerk to say these things.”
(*SWOOP*) Apparently my critique has gone right over your head, your… er… majesty.
I don’t know that “a clerk” said ANYTHING. And if one or even multiple clerks did… I have no idea what their motivation is or whether they’re being truthful.
I’m not saying there’s never a place for “leaks” or “unattributed” or “on background” info to appear in reporting, I’m simply noting the suspicious over reliance on such by Rosen (and ultimately Frum).
Your humble servant,
BILL
16 krove // May 4, 2009 at 12:48 pm
Ireign Quote.
“As I noted previously, the clerks have a vested interest in seeing her appointed to the Supreme Court. The fact that some have significant doubts is surprising. “
The article actually says.
Quote
“as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.”
Please note the words “clerk for ANOTHER judge”
So it’s not the opinion of a clerk to Sotomayor it’s ANOTHER judge. Not a credible source.
17 ottovbvs // May 4, 2009 at 1:19 pm
ireign
9:21 AM
It is obvious that most of you have no idea how to use google to find out who Jeffrey Rosen is and have no idea what The New Republic (TNR). Jeffrey Rosen is a George Washington University Law Professor who is TNR’s legal analyst. TNR is a liberal magazine that was Clinton’s magazine of choice and Rosen is a liberal law professor.
…..It’s obvious ireign doesn’t know much about TNR….It’s all over the board politically….read Marty Peretz and others there sometimes ….Sure Rosen is a liberal law professor that doesn’t mean he doesn’t have axes to grind…..Paul Krugman is a liberal economist and he’s constantly been criticising the policies of Summers and Geithner…..Does it occur to you for a moment that Rosen has a dog in this race?…Oh I forgot conservatives don’t do nuance.
18 tarazeigler // May 4, 2009 at 1:57 pm
ireign:
Not to pile on, but you seem insistent on not only being wrong, but being wrong rudely. You said the following:
“Rosen didn’t say “don’t support Sotomayor.” He pointed out that some of those who had worked under her, had some concerns about her being nominated to a Supreme Court position.”
He also pointed out some who really loved her work. So why can’t we present this article as an endorsement?
Here’s why: The article is called: “The Case Against Sotomayor.” That is a pretty clear title, don’t you think? Where does Rosen leave himself wiggle-room with that title? If I were being a cynic, I’d suggest that TNR came up with the title before the article and came up short in the content department, figuring the title would be enough to attract readers. If I were a cynic, I’d say they were right. (and don’t bother mentioning how they are liberals. You don’t think liberals eat their own?)
So, some clerks and judges didn’t like her personality? Okay. So what? I am interested in her command of the law. The only real example mentioned in the article is the New Haven Fire Department case. Rosen then proceeds to discount his own material by stating:”The extent of Sotomayor’s involvement in the opinion itself is not publicly known.” Really? Then I guess that example alone is not terribly informative.
Let’s be clear, I am not supporting or opposing Sotomayor. I am opposing sloppy work and this particular judge is unwittingly inspiring a slew of it.
19 barker13 // May 4, 2009 at 2:13 pm
Re: Ottovbvs; wrote 48 minutes ago –
Yep. Some great stuff appears in TNR.
Heck… for that matter I often find stuff well worth reading in the Atlantic.
Krugman? Just because I disagree with him far more often than not doesn’t mean he doesn’t hit the nail on the head occasionally. (Heck… same with Robert Reich for that matter!)
Anyway… believe me… when Obama names his appointment… we’ll no doubt be spending weeks – perhaps months – debating the merits as well as the facts concerning everything about the nomination.
BILL
20 sinz54 // May 4, 2009 at 3:45 pm
ireign: Attacking Sotomayor’s personality, or her long rambling memos, is the type of thing I said I would NOT support–personal attacks in lieu of dissections of her judicial philosophy.
It’s pretty obvious that when Souter announced his retirement, no conservatives said to themselves “Gee, I hope Obama appoints a replacement who is easy to get along with and can write pithy memos.” What conservatives were instantly terrified of, is Obama appointing an ultra-liberal to the Supreme Court who will pull the Court to the left on social issues and homeland security issues.
So please let’s stop discussing the kind of personality Sotomayor is, or even the kind of work habits she has. You and I both know that was never the issue.
21 ireign // May 4, 2009 at 3:55 pm
Sinz-no one is going to attack her directly or oppose her on that point if she is nominee. Temperament is important (more so for Democrats than Republicans). Scalia probably has lost a few battles not because his argument but because he pisses off other judges. Roberts was picked in part because conservatives felt he could convince liberals to vote his way. Breyer is known for being persuasive.
22 ireign // May 4, 2009 at 3:57 pm
Taraziegler-there has been plenty of rudeness to go around, especially from bulldoglover. Not only was he rude but to paraphrase you, he was also wrong.
As for your comment, you answered your own question. I never said Rosen’s article was an endorsement. He presented a case against nominating Sotomayor. That is far different from not supporting her, should she be the nominee.
Otto(BS) TNR-is known to be a liberal periodical. The only time they didn’t endorse a Democrat for President was Carter and in that situation, they endorsed the liberal independent in the race, Jack Anderson. Martin Peretz, while hawkish on foreign policy, is still a partisan Democrat. There is at most one editor who is not a Democrat. Hardly, all over the map politically. A quick google search would reveal that.
I never said Rosen didn’t have a “dog in the race.” In fact, I believe Frum probably does have a dog in the race, i.e. Kagan. You are trying to demagogue the point, which is that it is rare for former clerks of the same political persuasion to criticize a judge. There is no other Second Circuit judge on Obama’s shortlist so it is not like they are pushing their own judge.
krove-Clerks for other judges can be credible sources. Clerks for one judge usually interact with other judges.
23 tarazeigler // May 4, 2009 at 7:58 pm
ireign: What? Wow. I’ll give you credit for tenacity and leaps of logic, anyway.
sinz54: Well said. Temperament is important but not as important as judicial philosophy and I can’t understand how any good analysis of Sotomayor’s fitness as a nominee completely leaves that philosophy out of the discussion.
24 Bulldoglover100 // May 4, 2009 at 9:39 pm
David…On 3/02/09 Politico had this:
President Barack Obama should fill vacant spots on the federal bench with former President Bushs judicial nominees to help avoid another huge fight over the judiciary, all 41 Senate Republicans said Monday.
In a letter to the White House, the Republican senators said Obama would “change the tone in Washington” if he were to renominate Bush nominees like Peter Keisler, Glen Conrad and Paul Diamond. And they requested that Obama respect the Senates constitutional role in reviewing judicial nominees by seeking their consultation about potential nominees from their respective states.
..since George H.W Bush appointed her, where is the problem???
25 Bulldoglover100 // May 4, 2009 at 9:42 pm
Ireign…you were rude hon. I just returned your snarky onslaught…but anyone reading can see that fact…even if you can’t.
As for being wrong in your eyes? I can live with that as being right in your world? Would be a scary place.
I was not wrong though as my point is a matter of public record…facts…those pesky little things! LOL they do tend to mess the reality of the uneducated.
26 ireign // May 4, 2009 at 10:06 pm
Bullcraplover-Once again, you are unable to grasp context. Repeating something stupid (i.e. since HW Bush appointed her she must be acceptable to Republicans) ad nauseum does not make it correct. Most people can grasp that argument is fallacious. Why you choose to go on a Republican blog to repeat such idiocy makes little sense. Do you honestly expect people to buy into your logic?
I love how people like you can have the nerve to call someone with a graduate degree from an elite school uneducated. Why don’t you and everyone else who wants to call others uneducated let us know your alma mater?
27 ShawninPHX // May 5, 2009 at 12:10 am
David – I really enjoy the site. I was disappointed, however, that you did not include what he says at the end of the story:
“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.”
To me, this seems like HS gossip and, coming from TNR, I’m pretty disappointed. Rather than giving us any real reporting (or even having taken a look at any of her opinions or talked to former prosecutors) he passes along gossip from other judges clerks.
I’m taking this story as seriously as I take Michelle Bachman.
28 ShawninPHX // May 6, 2009 at 3:12 pm
One more comment: Why is this now at the bottom of your page? Suddenly this article dropped from the top of the page to the bottom (even though your pages were in date order).
I re-read your analysis after and that day it was at the bottom of the page (even though past articles were ahead of it). May I ask you to explain your policy for stories?
Thanks,
S-
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