A Quick Two Cents on Sotomayor

I have no idea who Judge Sotomayor is, so I’m even less qualified to weigh in the Jeffrey Rosen or Reihan – which, as I understand it, means I’m the perfect person to dive into the subject. So I won’t!

Seriously, though, Rosen wrote a hit piece on Sotomayor because she’s not his pick. That’s not very complicated, is it? We know something about what Rosen wants in a Justice. He wants somebody:

- who’s a bit of a legal intellectual (Rosen thinks sexual harrassment law should be reconstituted based on a tort of invasion of privacy, because he thinks sexual harrassment is bad and invasion of privacy is bad, and can make an intellectual case for connecting them, and because he wants to narrow the scope of equal-protection jurisprudence, which is what sexual harrassment law is currently based on);

- who doesn’t personalize the law (Rosen has been very critical of O’Connor’s opinions on redistricting, describing them as basically saying: the only way to know whether a redistricting scheme is unconstitutionally disenfranchising African-Americans or unconstitutionally making too much of an effort to create majority-African-American districts is to run them by her);

- who has a Burkean caution (his least-favorite Justice is Kennedy, because of his penchant for making sweeping declarations and setting precedents with undefined scope);

- and who has a Byron White-ean sense of deference (His favorite Justice on the Court today is Breyer, partly because he’s an incrementalist liberal but also because of his record of deference towards Congress).

As well, he’s somebody with much more of an individual-autonomy orientation and much less of an equal-protection orientation.

It’s not surprising to me that, based on biography alone, knowing nothing else, Rosen doubts that Sotomayor is his kind of pick. (Among other things, if she’d been his kind of pick, he’d already know about her!) I wouldn’t be shocked if, based on a very superficial review of her record and reputation, he feared she’d be a liberal O’Connor.

More to the point, he thinks she ruled the wrong way in Ricci. He clearly wants the Court to overturn, and force Obama to find a “third way” on race. Sotomayor is on the other side. That probably worries him for two reasons: either (a) she’ll prove to be an effective advocate of a position that he disagrees with, or (b) she’ll annoy Justice Kennedy enough that he sides with Roberts, Scalia, Thomas and Alito, and we wind up with a bunch of decisions on race that are much more right-wing than he would otherwise prefer.

That doesn’t say anything about whether he’s justified in relying on anonymous sources, or impugning her intelligence, or what-have-you. For the record, I thought it was a pretty lousy piece. But I’m not at all surprised that Rosen is hoping for another pick, and that strikes me as the basic reason for the piece.

The more interesting question, it seems to me, is whether he himself is right in what he wants, as he describes it. If you’re Jeffrey Rosen, do you want a liberal on the Court who can “stand up to” Scalia, an intellectual force with a clear judicial ideology? That’s Rosen’s professed standard, someone who can “provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.” Is that what Rosen, himself, should want, given his view of the Court’s proper role and how he thinks a liberal Court should behave?

I think the answer is, “no.” Rosen – and Obama, assuming he shares Rosen’s broader goals (not his specific views on Ricci where they pretty plainly disagree) – shouldn’t be looking for an intellectual powerhouse. They should be looking for a successful judicial politician. They don’t need someone to counter Scalia. They need someone to counter Roberts.

Is Sotomayor that person? I have no idea. I haven’t read her opinions. I don’t even have anonymous sources at my disposal to provide the answer. But that’s my sense of what the real question should be.