But despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.
The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "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." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."
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.
Not all the former clerks for other judges I talked to were skeptical about Sotomayor. "I know the word on the street is that she's not the brainiest of people, but I didn't have that experience," said one former clerk for another judge. "She's an incredibly impressive person, she's not shy or apologetic about who she is, and that's great." This supporter praised Sotomayor for not being a wilting violet. "She commands attention, she's clearly in charge, she speaks her mind, she's funny, she's voluble, and she has ownership over the role in a very positive way," she said. "She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?"
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.
Wow. So since we liberals are motivated only by the desire to find a capable justice, it's completely acceptable to run a column that consists almost entirely gossip and innuendo from people who cannot be bothered to put their names to their opinions. Rosen completely writes off the possibility that any of these unnamed critics are "motivated by sour grapes", but it's impossible for me to imagine that he's able to confidently make such an assertion without investigating in detail the connection of all his various "sources" to Judge Sotomayor. And he prints, without any discretion, complaints about Sotomayor's opinions without even bothering to formulate an opinion of them himself, which strikes me as journalistic negligence (since when do journalists not inform themselves about the subject their investigating, and rely entirely upon the opinions of their interviewees?) As for Sotomayor not being all that "smart", on what basis is this pronouncement made, other than the fact that some of the people he spoke to say so (and others don't)? Seems to me that someone who manages to get themselves on a Federal Court of Appeals has to have some fair amount of intelligence.
What a silly column. I prefer the opinions of those who don't hide in anonymity, so that I may judge their credibility and credentials for myself. And Rosen should bother to read the opinions of the next potential nominee that he wants to take a hatchet to. Granted, that's not as exciting as sinking a potential nominee armed only with a laptop and malicious gossip. Supposedly this is first of a series of articles that Rosen will be doing on potential nominees. But if this is what we can expect from the rest, he should just stop while he's ahead.
UPDATE: I was too kind to call this journalistic negligence. "Malpractice" would be a more appropriate term.