The Sotomayor Culture War
Jeff Rosen has been raked over the coals for his not-positive assessment of Sonia Sotomayor. What I find remarkable is this — Rosen was being so cautious and careful that he acknowledged his limitations in passing judgment, a good and responsible thing to do, and his humility is being used as a lacerating strike against him.
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.
Rosen explicitly invited readers to take a different view, and to discount his assessment. Some of Rosen’s detractors say, “Well in that case, why did you write anything at all?” Rest assured, most people who weigh in on public controversies of this kind know far less about the subjects of these controversies than Rosen knows about Sotomayor. Having recognized that he was relaying strongly negative assessment, Rosen checked himself before he wrecked himself, which is the best one can do. Should Rosen not draw on the knowledge of legal insiders to sketch out potential criticisms? For liberals, Rosen is “in the family.” And my sense is that it is better for these criticisms to be aired “in the family” than in another context. Yet my sense is that Rosen is writing himself out of “the family” by raising the possibility that Sotomayor is a Miers — not a Miers, as that’s fairly extreme, but a Miers late who has failed to really distinguish herself.
Matt Yglesias, in a similar vein, wrote the following:
Really it seems to me that when you see a person who appears to be qualified in all the normal ways, you owe that person a presumption that she’s up to the job. I recall a lot of issues being raised during the Samuel Alito confirmation fight, but at that time I don’t remember anyone raising questions about the intelligence of a Princeton/Yale Law graduate who’d done time on a Appeals Court. Maybe we should make the two of them both take IQ tests or something?
This strikes me as a mistake. Many people raised questions about Harriet Miers’ intelligence. Granted, she wasn’t a Princeton/Yale Law graduate, but I think it’s safe to say that plenty of Princeton/Yale Law graduates are dunderheads. Similarly, people raised questions about the intelligence of George W. Bush and, to a lesser extent, Al Gore. No one really raised questions about the intelligence of Barack Obama or Bill Clinton or George H.W. Bush. And that’s not insignificant.
This is hard for me, as I think it’s really obnoxious to raise questions about “intelligence” or “brain wattage,” etc. But again, Rosen is “in the family,” so he presumably wants Obama to choose the strongest nominee.
Why does choosing the strongest nominee matter? My sense is that it is about networks. If John Paul Stevens retired, for example, the Supreme Court would move to the right and not the left, even if Obama named a similarly committed liberal, because Stevens has a lot of social capital — he can bring Kennedy on side, he can unite the liberals, etc. You need someone who, through force of personality and wattage, can move the Court in your direction.
Glenn Greenwald thinks that nepotism might be at work — directly, or perhaps subconsciously — via Neal Katyal, Rosen’s brother-in-law. This strikes me as silly. My guess is that Rosen knows a very, very large pool of former Second Circuit clerks. I do, and I’m not a law professor. I will say that I’m on Team Elena Kagan, which could be why I’m inclined to give Rosen the benefit of the doubt.
Last point: isn’t it strange that no one has talked about the significance of naming an openly gay justice to the bench given the pool of strong candidates?
I think the fuss is because making comments about a person’s intelligence is highly impolite. And when you do it in a public forum it becomes, at least, de facto character assasination. To do so without anything but hearsay evidence is kind of unethical. He should have at least read the opinions which I’m sure are readily available. You can tell a lot about a person’s intelligence from their legal reasonsing. Then he could have said, her legal reasoning seems suspect to me, and then other people could have looked at the opinions and had a substantive argument. But how can you argue (or defend yourself against) “some people I know say she’s not bright enough. The fact that he couches his disparagement in all kinds of qualifications show he felt like he was doing something wrong. Which I think he was. It was thoughtless, lazy, unethical, and unhelpful to the process. Just not a good job unless his job is rumor mongering.
— cw · May 6, 05:12 PM · #
I think most of the outrage over Rosen’s article is (or at least should be) because he’s actually a law professor.
It would be one thing if a regular journalist wrote a piece trashing Sotomayor based on anonymous quotes, ending the piece with a warning along the lines of Rosen’s “I haven’t read enough actual opinions to form my own judgment.” This would probably not be very upsetting (though I probably wouldn’t pay the piece much attention).
The problem is that Jeffrey Rosen is the legal affairs correspondent for the New Republic, a law professor, and a Yale Law grad. It seems to me that the whole point of hiring someone with this background for your magazine is that he can use his legal expertise to write good articles. Jeffrey Rosen can, in fact, read Sotomayor’s opinions and come to some sort of informed opinion about her abilities as a judge in a way that many journalists can not. He has technical expertise that he can use to form his opinion.
But he doesn’t use this expertise at all. He doesn’t even appear to try. And in so doing, he’s trying to benefit from the additional respect given to “expert” writers without actually doing any of the work that justifies this respect. That is to say: The average Rosen article on a legal topic should be “worth more” than an article on the same topic by a nonlawyer journalist, because he has special expertise that he can use in writing the article. But when Rosen opts not to use this special expertise, as in his article on Sotomayor, he’s trying to benefit from the enhanced status received from his credentials without actually using any of the skills that make his credentials valuable as a writer.
— Dave Roth · May 6, 05:13 PM · #
Jeffrey Rosen: People tell me that Sonia Sotomayor is dumb, and I don’t know what I’m talking about.
Reihan Salam: People shouldn’t criticize Jeff because a lot of people know even less than he does, and some peoples’ intelligence has been questioned before.
This doesn’t make much sense to me. I don’t get your points. If you want to make an argument that Sotomayor isn’t up to working on the Supreme Court based on public statements and written opinions, I’ll listen. But saying that Harriet Miers and George W. Bush’s intelligence were questioned (fairly, in my opinion) while Barack Obama and George H. W. Bush’s weren’t strikes me as a non-point. Some people, like Bush 41 and Obama, are smart. Some, like Bush 43 and Miers, aren’t really. I believe in the benefit of the doubt, but both Bush 43 and Miers gave many occasions to question their intellectual qualifications. The elder Bush and Obama didn’t, and self-admitting that Bush 41 wasn’t questioned about his intelligence undermines your partisanship argument. I don’t recall John McCain undergoing questions about his acumen despite some legitimate flubs, and neither John Roberts nor Sam Alito underwent any sort of prenomination or postnomination doubt about their intellectual abilities.
This is just contrarian nonsense. Is Reihan trying out for Slate?
— Lev · May 6, 06:06 PM · #
A couple of big problems with Rosen’s article you don’t address.
1) He relies almost entirely on anonymous sources and gives us no idea how they arrived at their opinions of Sotomayor. We know that none of them worked with her very closely. We have no way of assessing their credibility. We have to take his assertion that their motives are pure on faith.
2) He cites exactly two actual opinions as evidence. One of these is a per curiam decision in which Sotomayor was one of a three-judge panel in an affirmative action case. He admits that there is no reason to believe that Sotomayer wrote or had any undue influence over the decision. He then cites an “objection” by Judge Cabranes criticizing the panel’s opinion for failing to address the constitutional issues in the case. He does not explain that the objection was in fact a dissent from a 7-6 decision by the Second Circuit not to rehear the case en banc. In other words, if Rosen is saying that panel opinion is evidence of Sotomayor’s incompetence—even though there is no reason to believe she wrote it—he is also saying that the majority of the Second Circuit is incompetent. The vast majority of Rosen’s readers probably do not know the procedural history of the case, which is very relevant, and he does not tell them.
More troubling is the bit about the “unusual” footnote, in which, Rosen claims, a judge criticizes an earlier opinion written by Sotomayor for misstating the law in a way that misled one of the lawyers. This is false. The footnote explicitly says that Sotomayor’s opinion “does not purport to reach” the issues the lawyer argued it does. Rosen’s characterization couldn’t be more wrong. It is particularly bizarre that Rosen would characterize the footnote as “unusual.” Disagreements over the scope and meaning of earlier decisions are often central to appellate arguments and are addressed in many, if not most, appellate opinions.
Again, these are the only pieces of hard evidence in the article, and Rosen distorts or entirely mischaracterizes both. He is either an idiot or being deliberately dishonest, and given that he’s a GW law professor, the latter is more likely.
— Brendan · May 6, 06:29 PM · #
Dave Roth nails it. It’s one thing to caveat an opinion that has some basis but may not be the whole picture. It’s another thing to caveat an opinion based entirely on anonymous insinuations. “Some people say John Roberts is gay, but I’m agnostic on the issue” is not a praiseworthy example of intellectual modesty, especially when published in a prominent national political magazine.
Furthermore, I imagine people are especially infuriated by Rosen’s piece because they can sense the brewing opposition narrative if Sotomayer is in fact nominated: she’s just an affirmative action pick who isn’t smart enough to make it on the merits. Rosen’s piece, with its unanswerable slams on her intelligence, fits brilliantly into the genre. I’m surprised that Reihan, who is normally so sharp, is joining Rosen in know-nothing naivete about the political implications here.
— salacious · May 6, 06:41 PM · #
Lev, I’ve been spouting contrarian nonsense since birth! Give me some credit, man.
— Reihan · May 6, 07:36 PM · #
No competant practicing lawyer is going to go on record by name saying that Sotomayor is dumb. Therefore, at some level, Rosen had to rely on anonymous sources. Still, once he decided to write an article making that charge, he should have done enough legwork to get a “balanced picture of her strengths.” Not a perfect picture, of course, but a reasonable one.
p.s.: When I was practicing in New York, I knew quite a few people who had concerns about Sotomayor’s wattage, including people who had a lot of respect for other female and/or hispanic judges, so I don’t think it was racism or sexism. For all I know, though, they could have been all wet, or she could have gotten better since then.
— J Mann · May 6, 08:59 PM · #
In my experience, people who graduate summa from ‘good schools’ like Princeton, are, to at least to 6th-order, smart enough to not merit being called ‘dumb [and obnoxious]’ as Judge Sotomayor has been called on the illustrious pages of NRO. Or, for that matter, being so judged by anonymous sources. This isn’t grade school. Also, there’s no affirmative action for graduating in the top 5-10% of your class.
In any case, I assume all potential nominees will have their background scrutinized properly. Hopefully at a more substantial level than “she’s dumb”..
— jackal · May 7, 12:28 AM · #
Reihan,
Now, I’m sure a few of the points I’m going to make have been made above already, because I’m coming to this post late. Still, though, there are several things troubling in Rosen’s piece, and they’re all in the paragraph you’re using to exonerate him:
“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.”
First, as Dave Roth says, simply as a matter of process, Rosen should have actually read some of Sotomayor’s rulings before he reported this, if for no other reason that he’d be able to at least push back against or at least better question some of the claims made by his sources. Basically, do your damn homework.
Second, Rosen lapses into the “just trust me” trap when he says that he knows that these people aren’t motivated by sour grapes or the like. Well, perhaps. But, on the other hand, maybe they DO have an axe to grind. Of course, there’s no way for the reader to gleam their motivations because we don’t know who they are or their relationships to Sotomayor. I’m in journalism school getting a master’s degree now and I would get laughed at if I turned in a piece like this: long on inflammatory claims about, but short on concrete sourcing.
That, of course, speaks directly to one of Glenn Greenwald’s favorite punching bags of the moment, the overuse of unnamed sources by journalists. I understand that in some cases, you absolutely have to do it, but come on…you’re going to tell me that there’s not a former co-worker/law professor/retired jurist somewhere who would be willing to sack up and attach their name to their comments? I don’t think Rosen tried hard enough, but I obviously don’t know that to be true (and I exonerated for attaching that proviso?)
— Mike P · May 7, 01:21 AM · #
I guess I don’t get it. Only a great idiot could read Rosen’s absurd “I heard she’s teh dumbz0r, but, you know, I haven’t been able to confirm or deny” and think that makes Rosen’s smearing hitpiece stronger. What Rosen is doing here isn’t “humility”, it’s cowardice – he wants to call Sotomeyor a dumb woman, but he doesn’t have the balls to associate himself with that kind of smear. So he simply puts it in the mouths of conveniently-anonymous “sources” as a kind of plausible deniability. Rosen’s piece has one intention, and that is to set up a disgusting and sexist whisper campaign.
On that note, though, I’ve been told by several anonymous sources – who I assure you, have no axe to grind – that Reihan Salam has sex with goats. I haven’t, myself, read enough of Reihan’s blog posts to confirm or deny this, so I leave it to the reader, but, you know, concerns have been raised. It’d be a violation of epistemological modesty to do anything but put that out there, and while some might say that it would be irresponsible to speculate, I feel it’s irresponsible not to!
— Chet · May 7, 02:20 AM · #
Dear Chet:
As to the “Reihan Salam has sex with goats” controversy, I thought I put these rumors to rest when I allowed myself to be monitored by a 24-hour Panoptiwebcam for six years. The final report concluded that I do not in fact have sex with goats; rather, I am the urban Leprechaun featured in the film “Leprechaun in the Hood.”
Here’s an excerpt from the exhaustive footage:
http://www.youtube.com/watch?v=mlufxatPxnA
— Reihan · May 7, 02:40 AM · #
Just what I’d expect a goat-sexer-upper to say!
— Chet · May 7, 06:06 AM · #
Wait a minute, we’re this far down in a post about intelligence testing and Sailer hasn’t commented? Is he OK?
— Sanjay · May 7, 01:29 PM · #
Quickly, to defend the illustrious pages of NRO from jackal’s insinuations; if you were referring Mark Hemingway, he was characterizing Rosen’s remarks, not putting forth an opinion. The title of the post was “So What Does Rosen Really Think?” Whether he agreed with the characterization or was merely bemused by it is an open question.
Also, as others have pointed out, wouldn’t the way to verify whether Sotomeyer was sufficiently intellectually impressive, or however he characterized it, be to actually look at some of her jurisprudence?
— Blar · May 7, 02:32 PM · #
Two words about your defense of Rosen: intellectually corrupt.
Good day sir.
— sy · May 7, 02:55 PM · #
“My guess is” you, like Rosen, are talking out of your hat. The dog ate my homework is not a statement of humility. The difference between Rosen’s tabloid worthy slur by innuendo (I hear she’s stupid and ornery) and the reaction to it is that unlike Rosen, those who are reacting actually read Rosen’s article. In the days of round the clock internet linkage (http://prawfsblawg.blogs.com/prawfsblawg/2009/05/on-the-brilliance-of-people-like-judge-sonia-sotomayor-and-barack-obama.html#more), to use a basketball metaphor, if you want to bring that lame stuff into the paint, it will be swatted down time after time after time.
— CitizenE · May 7, 03:05 PM · #