With Sonia Sotomayor as the leading candidate for Justice David Souter’s chair on the Supremes (which, I note, is almost always the kiss of death), the knives are coming out. Jeffrey Rosen in The New Republic is the messenger of deep Second Circuit secrets.
After reporting that many praised Judge Sotomayor, Rosen writes:
Over the past few weeks, I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.
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?”)
So the complaining comes from (a) anonymous (b) law clerks for (c) other circuit judges or (d) former assistants? While it’s impossible to know whether Rosen is talking about three or three hundred, and the value of anything they have to say is obviously undercut by their cowardice in refusing to put their name to their claim, there is one thing that comes out of this nonetheless. The failure to meet the intellectual expectations of a clerk suggests that maybe, just maybe, the judge gets it and the clerk is a pompous, pseudo-intellectual elitist?
Who exactly are these young men and women to offer opinions on Judge Sotomayor’s general intellectual prowess? No doubt they see themselves as brilliant, as every circuit clerk does, and far better able to comprehend than the doddering old fools in robes for whom they work. Do we all share their high opinion of themselves, such that they are entitled to question the intellect of a circuit judge? Even if accurate, does this reflect what we, as opposed to they, find important in a Supreme Court Justice? I sense that we might not all share the same vision of critical attributes that the Scions of Eli hold dear. I bet some of us would happily trade some pragmatism for intellect any day, not that I’m suggesting that would be the case. And we certainly know that the current writing on the court leaves much to be desired.
I have no clue whether Rosen’s assessment bears any relation to reality, or is just an example of the attacks starting. But Gerard Magliocca, who clerked for Judge Sotomayor, has taken up arms in her defense over at Concurring Opinions. With my starting point being that law clerks are not the measure of a good judge, coupled with anonymity so there is no price for their comments, and given Magliocca’s measured response, Rosen’s piece strikes me as mere inflammatory fodder. It may be right, but I’m not buying based on that.
Unless and until the anonymous complainers care to come forward and take the heat for their thoughts, I’m sticking with Magliocca and what I know of the Judge.
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Reminds me of some of the attacks on Bork and Thomas. (Some, like Joe Biden’s at the confirmation hearings, were clearly — to me — utterly legitimate*, even though I disagree with the gist of some of them.)
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*I am sure that the VPOTUS, upon reading this, will sigh in relief that his words meet with my approval.
I should know better than to do this, but I can’t stop myself. So what about anon law clerks reminds you of a review of Bork’s writings or Anita Hill’s testimony?
Of the first, nothing; of the second, a little. On the first, I think that a review of a nominee’s judicial writing is not only not bad, but good — and the more thorough it is, the better. (And, honest, I don’t think I get to prescreen the criticism for acceptability, which is just as well, as I don’t get to prescreen the criticism for acceptability.) As to the second, it was, I think, pretty clearly an attempt to argue that Thomas is such a bad person that he shouldn’t be allowed to sit on that bench, just as the anon law clerks seem to be averring about Sotomayor — and while Professor Hill did, eventually, make those attacks publicly, the first barrage was (more or less) anonymous, and she went to some trouble (as the anon law clerks have done, so far) to keep her name out of it, although that was eventually unsuccessful, and she was dragged, metaphorically kicking and screaming, into the public spotlight, which is where we ended up seeing her testimony.
This may — may — yet be the case with the anon law clerks; they may end up putting their names to their criticism of the judge.
And when they surface, perhaps they will provide credible information that will change views. Until then, it’s just gossip.
Anonymous ad hominem attacks are cowardly. she is a good and smart judge
Rosen summed up with: “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. But they’re not motivated by sour grapes or by ideological disagreement–they’d like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard. Given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble”.
I don’t know….I think you missed the point of Rosen’s commentary. He admits he hasn’t read enough of Sotomayor’s opinions to make a fair judgment but
Obama should have before making the appointment. Sounds like Rosen is slanted more to negative based on what he has investigated.
These same law clerks are the ones that politicians choose as judges in the future. If you don’t listen to the clerks, and don’t listen to the lawyers who practice in front of these judges, and all you want to listen to is the liberal media, then we might as well nominate idiots like Biden and Obermaster or maybe a nice, Republican-loathing lesbian like Wanda Dykes?
Blawg Review #211
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Blawg Review #211
See Cartoons by John Darkow – Courtesy of Politicalcartoons.com – Email this Cartoon President Barack Obama has completed his first 100 days in office, and while we passed that marker a week or so ago, now it’s time for a…