Earlier this week, Jeffrey Rosen, who is apparently some sort of "legal affairs editor" for The New Republic was tasked with doing "a series of reports ...about the strengths and weaknesses of the leading candidates on Barack Obama's Supreme Court shortlist." So, he found a bunch of people willing to spit off-the-record innuendoes about one of those candidates, Second Circuit Court Of Appeals judge Sonia Sotomayor. As you might suspect, the anonymous quotes were largely negative. But not to worry! Rosen made sure to balance the opinions of others with his own considered opinion. Hmmm. How exactly did he sum that up for his readers?
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.
Right! I tell you, this Rosen fellow is THOROUGH -- like the second coming of Learned Hand, or something!
Anyway, it's worth bringing up because the Washington Post pulled off an astounding journalistic feat today: they found colleagues of Sotomayor's who were actually willing to speak on the record. Here's the first paragraph:
George M. Pavia remembers being instantly impressed with the young woman he hired for his law firm in 1984. Sonia Sotomayor had graduated summa cum laude at Princeton, edited the Yale Law Journal in law school and had courtroom experience in the Manhattan prosecutor's office.
Who would have imagined that calling up one of Sotomayor's former employers might yield insight into her ability?
"I think her life experience gives her exactly the kind of perspective the court needs," said Robert H. Klonoff, dean of Lewis & Clark Law School in Portland, Ore., and a classmate and friend of Sotomayor's from Yale Law School's class of 1979. "When I read [Obama's] description of what he thinks of as an ideal justice, she just fits it to a T." Besides her background, he said, "her credentials are unbelievable."
Wow. Another quote, another name attached! Who is this reporter, Keith B. Richburg? Surely he is no mere mortal! Surely he has sprung, as Pallas Athena, from the forehead of Zeus himself.
"More than anything, I would call her a legal purist," said Julia Tarver Mason, who clerked for Sotomayor a decade ago. "I think she defies categorization in that sense because she really does make the law based on the law, in a purist fashion."
"She appreciates the complexity of issues," said Stephen L. Carter, a Yale professor who edited a piece by Sotomayor for the Yale Law Journal in 1979 and who teaches some of her opinions in his classes. Confronted with a tough case, Carter said, "she doesn't leap at its throat but reasons to get to the bottom of issues."
Another former clerk, Jenny Rivera, now a law professor at New York University, recalled how when her mother died not long ago, Sotomayor called her regularly and came to the funeral. "I know she's very close to her mother," Rivera said. "I really appreciated her sense of caring for me and my brother."
Okay, now Richburg is just showing off, I guess. But, I hope the point is clear. On-the-record Sotomayor sources: they exist! And yet, this ridiculous Rosen piece continues to set the terms of debate on the shortlisted candidate. Meanwhile, Brian Beutler and Glenn Greenwald hear, in the distance, the din of grinding axes:
What remains unclear is what, precisely, has animated the whisper campaign. Glenn Greenwald raised one intriguing suggestion:
Jeffrey Rosen's brother-in-law is Neal Katyal, the current Deputy Solicitor General in the Obama administration. If Sotomayor's prospects are torpedoed, that could clear the way for one of the other leading candidates to be named to the Court: current Solicitor General Elena Kagan. The selection of Kagan (rather than Sotomayor) would almost certainly result in Rosen's brother-in-law (Katyal) becoming Solicitor General. Additionally, Katyal himself was once a clerk for a Second Circuit judge, obviously raising the question of whether he was one of the anonymous sources for his brother-in-law's hit piece disparaging Sotomayor's intellect and character.
But Katyal served as a clerk on the Second Circuit in 1995 and 1996, two years before Sotomayor was belatedly confirmed to the court on October 2, 1998 by a Republican-controlled Senate. I spoke to Rosen by phone today, and he characterized things differently from Greenwald. He says Katyal was not one of his sources. He confirmed that a number of people--former clerks and federal prosecutors--approached him in a span of about two weeks, each voicing similar concerns about Sotomayor's temperament and fitness. He says that they were nearly all Democrats and doubts that they were animated by any ulterior motives.
Beutler adds that Rosen "will soon be addressing the controversy on The New Republic's website." I can't wait to hear him explain that it would be totally fair for someone to write "The Case Against Jeffrey Rosen" citing only anonymous sources and an announced lack of awareness of his writings!
And here you go: Rosen's response to the reaction his piece provoked. I shan't overly excerpt it, here, so please, go and read it in it's entirety.
--On the "Case"
The headline--"The Case Against Sotomayor"--promised something much stronger than I intended to deliver. As soon as the piece was published, I regretted the headline, which I hadn't seen in advance. The piece was not meant to be a definitive "case against" Judge Sotomayor's candidacy. It was intended to convey questions about her judicial temperament that sources had expressed to me in the preceding weeks.
As I originally said, the piece woul dhave been better off titled, "A Child's Garden Of Anonymously Sourced Opinions on [Sonia Sotomayor]."
--On the assertion made by Brian Beutler/Glenn Greenwald:
And, no, despite a conspiracy-minded suggestion to the contrary, one of my sources was not my brother-in-law, Neal Katyal, currently the deputy U.S. Solicitor General.
--On the veracity of anonymous sources:
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. Usually lawyers provide fairly positive comments. That's what makes the discussion of Sotomayor's temperament so striking. Here it is:
Sotomayor can be tough on lawyers, according to those interviewed. "She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive--not very judicial. She does not have a very good temperament." "She abuses lawyers." "She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like."
Not all of Sotomayor's lawyers' evaluations in other areas were this negative. As the Almanac puts it "most of lawyers interviewed said Sotomayor has good legal ability," and "lawyers said Sotomayor is very active and well-prepared at oral argument." I acknowledged both of these views in the piece.
What's not clear to me here is where the anonymous sources he cultivated end and those from the Almanac begin. Here, the line seems to be blurred. And the original piece makes no mention of the Almanac of the Federal Judicary, nor does it cite it as a source.
--On not having read Sotomayor's opinions:
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. Perhaps I conceded too much: 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. In the past few days, I've read many more opinions, and nothing has called my initial judgment into question.
If, at the time he wrote that "I haven't read enough of Sotomayor's opinions to have a confident sense of them," he had ACTUALLY "read enough of her opinions to find them good but not great," it seems to me that he conceded too little, not too much.
Anyway, Rosen plans on profiling the other judges on the shortlist, so hopefully, he'll apply a higher standard of scrutiny, now that he's aware of the demand for it. I still have to wonder if he'd accept as fair a profile of himself filled with veiled critical sources from an author who admits to not having a "confident sense of his writings." I'm guessing not.
As for Sotomayor, I'll simply point out that articles, like the aforementioned piece in the Post, featured named sources.