Tuesday, May 5, 2009

Group Think Begins Regarding Sonia Sotomayor

It's funny how you can read different things into what someone wrote. An example might be The New Repubic's Jeffrey Rosen's article about potential Supreme Court nominee Sonia Sotomayor:

A judge on the U.S. Court of Appeals for the Second Circuit, Sonia Sotomayor's biography is so compelling that many view her as the presumptive front-runner for Obama's first Supreme Court appointment. She grew up in the South Bronx, the daughter of Puerto Rican parents. Her father, a manual laborer who never attended high school, died a year after she was diagnosed with diabetes at the age of eight. She was raised by her mother, a nurse, and went to Princeton and then Yale Law School.

The Case Against Sotomayor

So far, this sounds pretty good to me. She's clearly grown up around working people. Unless she's a complete idiot or a narcissist, she knows what it is to have to struggle to make a living in this country. Based on her having gone to Yale and then succeeded in a legal career, I'll posit that she probably has a mind. This little snippet from Rosen's article would seem to indicate she's not a narcissist, either:

Sotomayor's former clerks sing her praises as a demanding but thoughtful boss whose personal experiences have given her a commitment to legal fairness. "She is a rule-bound pragmatist--very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background," says one former clerk. "She grew up in a situation of disadvantage, and was able, by virtue of the system operating in such a fair way, to accomplish what she did. I think she sees the law as an instrument that can accomplish the same thing for other people, a system that, if administered fairly, can give everyone the fair break they deserve, regardless of who they are."

The Case Against Sotomayor

Yet, as we see from the title of the article, Rosen finds her unqualified. Why is that? Other than a few prosecutors who might have spent time in her court, it's hard to find anyone Rosen interviewed who had a negative opinion of her and either worked with her or knew her very well.

It's certainly not hard to find such folks who would disagree with Rosen. Here's Glenn Greenwald:

I don't really have an opinion about whether Sotomayor would be a good pick for Obama -- I haven't done anywhere near the work necessary to formulate a meaningful judgment about that -- but, in my prior life as a litigator, I had some personal experiences with her. I had at least two, possibly three, cases in which she was the judge -- including a Second Circuit appeal for which she wrote the opinion (reversing the District Court) on behalf of a unanimous panel. At Oral Argument in that case, she was, by far, the most active questioner.

Based on those experiences, I'm genuinely amazed at how -- overnight -- she's been transformed in conventional wisdom, largely as a result of Rosen's piece, into a stupid, shrill, out-of-her-depth Puerto Rican woman who is being considered for the Supreme Court solely due to anti-merit, affirmative action reasons.

Jeffrey Rosen, TNR And The Anonymous Smears Against Sonia Sotomayor

As Glenn points out, the only bit of factual information Rosen presents about Sotomayor's work is, in fact, factually wrong, according to American University Professor Darren Hutchinson:

[Rosen] cites to a footnote in an opinion written by Judge Ralph Winter, a former 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[.]

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

[link from original]

As someone who isn't a lawyer and hasn't spent much time researching the law, I obviously can't say how common such a footnote may be. What I can say is that a plain-language reading of the footnote in question says that Prof. Hutchinson is right: it's rather obviously an example of someone explaining how he interprets a ruling (in contrast to how others have), not a criticism of it.

Contrasting it with Rosen's almost exclusive use of anonymous sources who didn't know all that much about her work as a critique, Prof. Hutchinson notes:

The American Bar Association uses a much more expansive and generally accepted analysis [(PDF)] (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 [(PDF)] that a "substantial majority" of respondents ranked her as "well qualified," while a "minority" found her "qualified."

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

At Slate, Emily Bazelon found one of Sotomayor's colleagues who was happy to praise her work:

I called Jamal Greene, a Columbia law professor who clerked for Judge Guido Calabresi, one of Sotomayor's colleagues. Here's his rebuttal of Rosen's unnamed critics:

I was always impressed with her memos. I thought that they always said exactly what was on my mind. One particular opinion that stands out: Hayden v. Pataki. Not sure that's the opinion, she'd want to talk about most, because what she wrote was quite short, but I thought it was also quite brilliant.

Defending Judge Sotomayor

Greenwald then goes on to note four articles written already by what I could most charitably call the usual suspects (Ambinder, Hemingway (of NRO), Derbyshire, and Kirkorian (also of NRO)),who are already quoting Rosen's article as if it meant something. Armbinder makes a particularly perplexing statement, at least if you assume that everything's on the up and up in DC:

There's a defense of Sotomayor somewhere out there -- her family history, stories of personal compassion, her best rulings -- but no one is making it. And for those who want Obama to nominate Sotomayor, that's a mistake.

Sotomayor's Public Image At Risk, Early

I count at least three defenses right here, by people who have demonstrated an ability to check facts before writing about them. This article, which while not a defense, is certainly meant to be pushback against this sort of group think. This is another case of people not doing even the most basic fact checking before jumping to the conclusion that this woman is only being considered because she's a Puerto Rican woman. Taylor Marsh, Wonkette, and Atrios have a thing or two to add, as well.

Taken together, Sotomayor's critics, whoever they are, mainly seem to be people who aren't familiar with her, while the people who have praised her work, either anonymously or openly, are generally in a position to know her better and to better evaluate the quality of her work. That people are so ready to take Cohen's article as anything more weighty than idle gossip is troubling. Once again, we see that it's a whole lot easier and faster to make things up and then pass that nonsense around than it is to credibly debunk them and have that case heard in our mainstream news.


Dana Hunter said...

Sad to say, but no amount of evidence to the contrary is ever going to shut these idiots up. As long as it's an Obama nominee, they're going to be engaging in as much character assassination as they can, even if they have to make it all up.

I think the working assumption must be that the louder they scream, the better the candidate.

Cujo359 said...

I'm not even sure that we can use that as a measure. If what they object to is primarily a result of faulty thought processes, it seems unlikely one can count on even that much consistency.