06/04/2009 05:12 am ET | Updated May 25, 2011

TNR 's "Case Against Sotomayor" Reliant On Anonymous Sources, Uninformed Opinion

Jeffrey Rosen seems to want to present the definitive case against Sonia Sotomayor, so much so that he titles his New Republic piece "The Case Against Sotomayor." Well, if one of the virtues of our legal system is the right to be confronted by one's accusers, then Rosen's case is a little wanting.

Though not in the department of provocative criticism! Sotomayor is called "not that smart and kind of a bully on the bench." Also, 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." There is a rumor that "an elderly judicial colleague is said to have leaned over and said, 'Will you please stop talking and let them talk?'"

Then, Rosen gives you two paragraphs, not supported by witness testimony at all, of the author's own interpretation:

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 example, 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 A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion.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.)

It's unknown how Sotomayor was involved in this "controversial" opinion, but let's hang the whole matter around her neck? And a conservative jurist wrote a footnote that we'll accept at face value as being a key element in "the case against Sotomayor?"

On the record testimony comes from Second Circuit Judge Jose Cabranes, who offers, "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media." Rosen says Cabranes is being "charitable." Indeed he is, if we compare it to all the other unnamed people, talking smack!

In fairness, Rosen garners his praise for Sotomayor from another loose collection of unnamed sources -- former clerks and associates. On balance, however, we have an equal amount of anonymous praise to offset the anonymous criticism, an on the record testimonial that's largely complimentary, and a couple paragraphs of challengeable assertions from Rosen. And then comes the sentence that Matt Yglesias, for one, notes as being sufficient to cast this whole exercise -- the anonymous castigation and those two paragraphs of Rosen's supposedly informed critique -- into doubt:

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.

Rosen says he'll be doing "a series of reports...about the strengths and weaknesses of the leading candidates on Barack Obama's Supreme Court shortlist." My suggestion to him is that he should title them something like, "A Child's Garden Of Anonymously Sourced Opinions on [SCOTUS Candidate]," and hold off on making definitive "cases" for and against, until such time as he can claim to know what the hell he's talking about.

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