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?