May 8, 2009

Jeffrey Rosen defends his attack on Sonia Sotomayor.

As you may recall, on Monday, Rosen quoted unnamed former clerks to make what the headline called "The Case Against Sotomayor." The "case" seemed to be mainly that she wasn't smart enough. Rosen got slammed. Finally, today, he responds:
I've just returned from London to find that my piece on Sonia Sotomayor has provoked an energetic response in the blogosphere.
Everyone knows there's no way you can check the internet in London, and anyway, why would you even think to look when, after all, you only just threw a huge stinkbomb?
Many people have mischaracterized my argument, and I can understand why. The headline--"The Case Against Sotomayor"--promised something much stronger than I intended to deliver...
Blame the headline writers. Yes, they do have a tendency to state bluntly the things you swathed in verbiage.
Readers have asked for more information about my sources....
Rosen assures us his sources are trustworthy and must remain anonymous.
I was satisfied that my sources's concerns were widely shared when I read Sotomayor's entry in the Almanac of the Federal Judiciary, which includes the rating of judges based on the collective opinions of the lawyers who work with them....
Yeah, the evaluations are bad — not on the point that she's not smart enough, but that she lacks "judicial temperament."
Some readers have also questioned my confession at the end of the piece that I hadn't read enough of her opinions to make a fully confident judgment.
Now, he's read some more opinions. He stands by his original opinion, which, he notes, accords with that Almanac of the Federal Judiciary.

Rosen concludes:
[I wanted] to encourage the White House to weigh considerations of temperament against the many other factors they'll be considering.
Ah, he's shifted to the temperament argument. He really didn't defend the "not smart enough" position.
For the next Supreme Court seat, the president needs to be sure that the nominee's temperament and abilities are not merely impressive but absolutely stellar. She--and the next justice should indeed be a she--must be ready to challenge the conservatives and persuade her fellow liberals from the very beginning.
Must be a woman. (I agree.) Must be a woman who can interact well with the Justices already on the Court. Fine... boilerplate. But read as a whole, this new Rosen piece — put bluntly, in the manner of a headline writer — is saying that Sonia Sotomayor would be a terrible choice for the Supreme Court.

57 comments:

MadisonMan said...

I had read enough of her opinions to find them good but not great--like much of the competent but not especially distinctive writing that characterizes most federal appellate opinions.

...says the man who has to come back and clarify what he meant.

rhhardin said...

Must be a woman. (I agree.)

Men go along mostly to avoid the nagging.

rhhardin said...

Has anybody asked themselves why men haven been content to be disparaged in every way for decades now?

They want peace, and they want to get laid.

There's a silent agreement about it.

What you hear is the silence.

halojones-fan said...

Why is it that everyone always acts like the Internet isn't a meaningful method of communication? It's like we're all just supposed to say "forget it, Jake, it's the Internet" and pretend like nothing anyone says here matters at all.

Paul Zrimsek said...

Must be a woman. (I agree.)

Please tell me you're using "must" in the strategic rather than the moral sense.

Jason (the commenter) said...

Blame the headline writers. Yes, they do have a tendency to state bluntly the things you swathed in verbiage.

But if that were true they would have given the new piece a better title than "More Sotomayor". How about "I lied", "You Caught Me", or "Who Reads This Stuff Anyway?".

Joe said...

Must be a woman.

What part of the constitution was that again?

Henry said...

It seems to me that Rosen's mistake in the original article was to act as a reporter. He talked to sources and reported what they said.

Much of the criticism of Rosen seems to be in the vein of "you terrible man, how dare you report things."

Apparently Rosen is expected to analyze, not report.

If he has read Sotomayor's opinions now and found them pedestrian, I wish he would have the balls to say she's not smart enough.

Henry said...
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Henry said...

I would add that Rosen himself seems confused about the piece. He sees himself as a legal analyst. It is this self-concept that generates his apology/confession for acting like a reporter.

jeff said...

Ah for the original intent days when it "must" be someone would be a good judge. But I'm sure getting someone due to political reasons is just as good. Hope the ABA performs its due constitutional duty when it rates whoever is considered.

Alan Stewart said...

Rosen was looking for the best of the best of the best -- a liberal who can combine the best qualities of Brandeis and Warren. In this context everything is relevant. Rosen didn't suggest in any way that Sotomayor wasn't qualified to be a justice. I expect him to be giving the rest of the bunch the same scrutiny -- and because the top candidates are all women, he'll be getting more anti-women slams from folks like the XX Factor people at Slate.

But it will be interesting if he goes soft on one or two he thinks are the best choices -- my guess being Sullivan and Karlan. If he does would that give more or less force to his criticisms of Sotomayor?

Bissage said...

It seems to me that Mr. Rosen has effectively reinforced his main point: Judge Sotomayer is not brilliant enough to offset her exceptional jerktitudinousness.

There are others in the running who don't share her negatives.

Bissage said...

BTW, it's an old saying: A judge yells at a lawyer and forgets it immediately and the lawyer remembers it the rest of his or her life.

Paybacks are a bitch.

Or so I've been told.

Lem said...

Must be a woman.

I’m changing my mind again.
Take me off the Sotomayor sweepstakes.

The impression (right or wrong) that there are too many women running things could hurt Palin.

Sotomayor may take away from the 'newness' of Palin.

BTW - if you can show how Sotomayor would help Palin, I'm a 120% all ears ;)

Trevor Jackson said...

"Sotomayor may take away from the 'newness' of Palin."

Lem, Palin takes away from the newness of Palin. Confirming a woman to Souter's spot isn't going to make Palin any less (or more!) palatable to the majority of Americans.

MadisonMan said...

IANAL, so I'll ask this. Are the complaints about Sotomayor -- tempermental, excitable, angry -- routinely made against male judges?

I would find it interesting -- not that it would necessarily mean anything -- to see how the comments break down on gender lines. Who perceives the judge as more excitable/angry/whatever: Men or Women lawyers?

Superdad said...

Why must it be a women? That's just wrong. I hate that crap.

And, yes (at least among litigators) we complain about a**hole male judges too.

AJ Lynch said...

Rosen must report for re-education camp. Everyone knows it is OK to call George Bush dumb. But never do that to a liberal.

PJ said...

IAAL, and I think MadMan poses a fascinating question. I wish Rosen would at least break down his sampling of anonymous clerks by gender. "Lacks judicial temperament" is often said of male judges, "temperamental" not so much, at least in my experience.

Anecdotally, I have argued a case before Judge Sotomayor, and I found that she was well prepared, her questions were incisive, and she plainly grasped both the abstract legal issues and the practical courtroom dynamics involved in the case. She was assertive, certainly, but not in any way that could fairly be cast as overbearing, disrespectful, or in breach of decorum.

Lem said...

Lem, Palin takes away from the newness of Palin.

I'm just going to pretend I didn't see that.

If you people are not going to give me some encouragement in face of what may appear as certain delusion on my part, I would appreciate if you just stay out of it.

Thank you very much.

John Stodder said...

The U.S. Supreme Court needs a man like a fish needs a bicycle.

AlphaLiberal said...

Yeah. Shifting your arguments to reach the same conclusion isn't exactly a way to burnish your standing as having proper critical temperament.

Rosen has a whole book out on judicial temperament and the Supreme Court. So that's kind of his hobby horse and the drum he bangs.

He has his critics and this guy thinks he's obsessed with the political power of the SC. But I was going to bring in Scalia on the issue of JT but Rosen knocks Scalia, apparently. Oh well.

And "judicial temperament" does seem to be a term with many definitions. Rosen doesn't explain WTF he's talking about in his latest.

garage mahal said...

Sotomayor is "able", no matter what my anonymous friends think!

former law student said...

Rosen comes back to assure us that his anonymous sources had no hidden agendas -- huh?

The issue is whether Rosen's anonymous sources represented a fair cross-section of people who have had dealings with the judge, or did he perhaps uncover a nest of grudge-nursing malcontents.

Palladian said...

Garage mahal has a thing for liberal bitches.

Juris Dentist said...

Althouse,

Your head is so far up your ass when it comes to the significance of headlines that it is truly remarkable. You are constantly blaming writers for the headlines they don't write. What utter lameness. Check that, you only pull this lame stunt if you don't agree with the article.

But get's get to the bottom of this: the woman has poor evaluations, so obviously Rosen is right in one way. But you seem to think that it is important that her bad evaluations were about temperament not for lack of smarts.

Well, guess what? If you are smart enough, you manage to maintain a judicial temperament.

Since you have great difficulty managing your own temperament, though, I can see why this point would elude you.

AJ Lynch said...

I think in the hierarchy of idiots, a Lawyer Dentist is even worse then a Lawyer Doctor.

former law student said...

You are constantly blaming writers for the headlines they don't write."The Case Against Sotomayor" is in fact too mild. Using Rosen's words, I'd suggest, "Sotomayor: Too Much of a Gamble."

Randy said...

@ Juris Dentist:

Thank you for that singular exhibition of projection.

John Stodder said...

Your head is so far up your ass when it comes to the significance of headlines that it is truly remarkable. ..

Apart from the bratty hyperbole of that sentence, you are also wrong.

It is true that the author doesn't write the headline, but blaming the headline-writer for failing to grasp the point the writer was trying to make is a)the oldest dodge in the game for journalists trying to weasel out of their own words, so it should always be taken with a grain of salt; and b) generally the fault of the writer for either being not clear enough or (as in Rosen's case) being clearer than he realized.

Glenn Greenwald, for all his faults, does not react to headlines. The Rosen piece was just as many have described it, an Establishment stab in the back. Perhaps it was justified, but we're still entitled to see it as a chickenshit way to go about it.

AlphaLiberal said...

Juris Dentist is a hoot. This person angrily lambastes Althouse and then accuses her of lacking "temperament."

It would be especially funny if JD turned out to be Jeffrey Rosen.

garage mahal said...

Temperament = She's Puerto Rican!

Ooo lala! Cha cha cha! Andele andele!

Alex said...

Yet another post that demonstrates Althouse is on the correct centrist path. It seems both right & left equally are vitriolic towards her.

Toby said...

Are the complaints about Sotomayor -- tempermental, excitable, angry -- routinely made against male judges?I've seen the basic qualities attributed to male judges, just using a vocabulary more commonly applied to men: bully, quick-tempered, has a short fuse, domineering, tyranical, etc. They all point to more or less the same set of personality traits, none of which would be particially appealing in a supreme court justice.

AlphaLiberal said...

Alex, sounds like you've got an odd shortcut to actual thinking.

And, JD could be a lib or a moderate for all you know. On what basis do you leap to that conclusion?

No, don't tell me.

AlphaLiberal said...

Here's another law professor who finds one of Rosen's actual "facts" was actually false:

Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia SotomayorHat-tip, GG.

mccullough said...

While a trial judge, Sotomayor ruled in favor of the New York Time and other publishers who reproduced free-lancers articles in on-line directories. The 2d Circuit reversed her, saying the publishers violated the free-lancers copyright when they reprinted their articles.

The Supreme Court agreed with the Second Circuit, 7-2.

damitajo1 said...

Well, Toby - toughness is viewed as a plus in male judges. Just compare Scalia's Alamanac report with Sotomayor's: Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"Also, Ann, isn't the AFJ even less reliable and substantive as US News rankings?

Joan said...

Why must it be a women? That's just wrong. I hate that crap.

ITA. I am a woman, and I hate that crap, too. It's bad enough to have identity politics running rampant in the other two branches of the federal government, why must it continue to infect the judiciary as well?

Professor, I'd love to hear you expand on your opinion that the nominee should be a woman.

srfwotb said...

An MBA prof in a class I attended a few years back was asked if there was a difference in the success rates of females/males in negotiation. She said studies show that the answer was *NO* for individual instances, but that there was a cumulative indirect difference.

Studies show people generally respond positively to someone who is in between pit bull and doormat on the sliding scale, but that women have a MUCH smaller sweetspot when it comes to likability. Men can be far more aggressive/passive and still be considered likable which impacts future negotiations in soft terms.

Women may do alright in a single negotiation but they will not be liked unless they hit that sweetspot, and that will impact them long term.

Just something I keep in mind when I read of "bad evaluations" from others. I am unfamiliar with her either way.

Joseph Hovsep said...

If women were already well represented in the judiciary, I'd say sex should not be a concern. But currently women are grotesquely underrepresented on the bench and its not because there aren't exceptionally well qualified candidates available. If we expect that appointed branch to have legitimacy, it should not have such an absurdly low number of women on it.

Ann Althouse said...

@ Juris Dentist. I have blogger temperament.

Henry said...
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Henry said...

Blogger average is 98.6°F.

Judges should be 96.8°F or under. On a cold day, the SCOTUS average can hit 89.6°F. That's why you see them always sunning themselves on the marble.

Sorry, what was the question again?

vnjagvet said...
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vnjagvet said...

I wonder whether some of the negative stuff on Judge Sotomayor is disinformation put out by some Obama "advisors", or by others who want another nominee.

So far, the criticism of her record and demeanor is pretty nebulous stuff, as is most of the analysis of candidates on the "short list" for any SCOTUS appointment, irrespective of the President involved.

IMO, Harriet Miers was a victim of similar sniping. I don't think this type of BS tends to promote public support and respect of the SCOTUS nomination process. But it continues unabated.

MadisonMan said...

I disagree re: Harriet Miers. I don't think she was qualified.

There may have been some unfair sniping about her nomination. But there was some very fair sniping about it as well.

vnjagvet said...

And there may be some fair sniping about Sotomayor.

I think on balance the sniping on both of these very capable individuals was more petty than substantive.

It is pretty clear most of the sniping on Miers came from the conservative wing of the Republican Party.

I wouldn't be surprised if most of the sniping on Judge Sotomayor is coming from a vocal part of the Dem constituency.

Joan said...

But currently women are grotesquely underrepresented on the bench and its not because there aren't exceptionally well qualified candidates available.

This discussion is reminiscent of the argument which looks at the "underrepresentation" of women faculty in hard sciences and engineering at universities. It makes me nervous that Title IX-type quotas will soon be imposed in areas outside of sports.

I don't believe there is any significant institutional bias against women, or if there is, it won't last much longer since male college enrollments are dropping. People who talk about "underrepresentation" fail to recognize that women self-select their careers. Seriously: if qualified women candidates were being kept off the bench (Janice Rogers Brown, anyone?), that's the kind of story the media would front-page and keep running. We would have heard about it -- provided, of course, the judge was liberal.

I'm not saying a woman shouldn't be considered, of course, but I want the best person for the job, whatever the job is, not the best set of ovaries.

paul a'barge said...

Hey, Occam's Razor ... maybe Sonia Sotomayor would be a terrible choice for the Supreme Court.

Joseph Hovsep said...

"women self-select their careers."But women do not self-select as Federal judges. The Supreme Court and the Federal bench are all Presidential appointments. If women are not being appointed (and its clear they are not), it is because the President(s) have not been appointing them, not because women have decided they don't want to be judges.

I'm not saying a woman shouldn't be considered, of course, but I want the best person for the job, whatever the job is, not the best set of ovaries.I just think its a fallacy to think there is a singular "best person for the job" in a situation like this. There are a number of well qualified candidates, each of whom would bring to the job a slightly different bag of skills, experience, personality, priorities, etc. This isn't a civil service job where you can give an exam that establishes who is the best. (Actually, I'm skeptical of how well a one-dimensional civil service style exam predicts the quality of one's performance in any job)

former law student said...

This discussion is reminiscent of the argument which looks at the "underrepresentation" of women faculty in hard sciences and engineering at universities.

But few women study physics or engineering. In contrast, for years law schools have been stuffing the pipeline with women JDs. Figuring it takes some 20 years for a JD to become a judge, based on the JD population of 1989, half the incoming judiciary should be female.

The usual deterrents to women's succeeding aren't present. Judges don't face 100 hour work weeks; they have far more control over their schedule than a private practice lawyer does. Being a judge is a secure government job. Governments often make cheap but good day care available to their employees. Etc.

Eli Blake said...

I predict that President Obama will name someone else other than Sotomayor, and within minutes of the annoucement many conservative organizations and leaders will issue a press release attacking the nominee as a 'liberal extremist.'

How will they be able to do that so quickly? Easy. The press releases have already been written, all they will have to do is insert the name.

Trooper York said...

Hey they are just taking the plays from out of Chuckie Schumer's playbook. Just change it from conservative extremist to liberal extremist and reverse all the opinions and you are good to go.

Sam said...

The substance of Jeffrey Rosen's concerns is shared by many familiar with Judge Sotomayer. She was not regarded as among the best of the district judges in the Southern District and her record on the 2d Circuit bench has been unremarkable. The nation is blessed with a wealth (perhaps an overabundance) of truly exceptional judges, scholars and lawyers, hundreds of whom possess a judicial temperament, intellect and independence are surely more reliable than that of Judge Sotomayer (and, for that matter, most of the other perceived "short-list" candidates). Those who believe gender and ethnicity should be the predominate considerations merely perpetuate the prejudices that they believe merit such affirmative action. Even if one wanted to put an ideological counterweight to Scalia, Thomas, et al, Sotomayer is far from the strongest pick to effectively shift the balance on the court beyond her own vote. The Souter slot could be very important by providing fresh leadership to the more progessive justices. Sotomayer would not accomplish that end.

Joseph Hovsep said...

Thank you for more vague, anonymous criticism of Sotomayor, Sam.

As Althouse has said in other contexts, perhaps the reason people can't come up with substantive objections to her is that their objections are really rooted in racism and sexism.