Legislative Update XXIII

The Senate confirmed Sonia Sotomayor to the U.S. Supreme Court by a vote of 68-31, including 9 Republicans. The Senate also unanimously confirmed the new ambassadors to China and Japan and the first U.S. attorneys appointed by President Obama. And the Senate joined the House in passing a $2 billion extension of the "cash for clunkers" program that was quickly signed into law by President Obama. Both chambers are now in recess until after Labor Day when, hopefully, they'll do something about health care.

Native American to the Supreme Court?

Well, now this is interesting:

The president has cheered diversity on the Supreme Court with his nomination of Sonia Sotomayor, who would be the first Hispanic and third woman to be appointed to the bench. For his next pick, we turned to you in our most recent Whispers poll.

Respondents chose racial diversity over religious diversity or difference in sexual orientation. A whopping 50 percent of those surveyed said they would like to see President Obama choose a Native American for the Supreme Court if the president got a second selection. Nineteen percent said they would like to see Obama appoint an Asian and 16 percent an African-American justice. Only 13 percent hoped to see a gay or lesbian justice as Obama's next pick. And coming in last, with 2 percent, was a Muslim justice.

As near as I can tell those were the only choices, the implied question being if Obama goes with a minority candidate, which minority group should he select from. Unfortunately the pickings are slim, as right now there are no Native Americans on the federal bench.

Legislative Update XX

The House of Representatives to protect wild horses from slaughter and give them millions of more acres to roam.

The Senate confirmed retired astronaut Maj. Gen. Charles Bolden to be the next head of NASA. The Senate also added a hate crimes provision for sexual orientation and genders as part of the defense appropriations bill to be completed next week. The House had already passed a bill, but the defense bill this is attached to is under a veto threat for F-22 spending that the White House and Pentagon don't want. And it looks like the infamous "card check" provision will be dropped from the Employee Free Choice Act to win over enough support from conservative Dems.

The Senate Judiciary Committee conducted hearings for Sonia Sotomayor and her nomination to be an associate justice on the Supreme Court. Most observers think Sotomayor was cool and collected and impressed even her GOP questioners. Her confirmation by the August recess seems assured, as even some Republicans are going to vote for her.

The House Intelligence Committee will investigate whether the CIA broke the law by not telling Congress earlier about a secret program for terrorist assassination teams.

The House Ways and Means Committee and the Education and Labor Committee have approved a sweeping health care reform bill (which has been endorsed by the AMA), but it still needs to be approved by the Energy and Commerce Committee before going to the full House.

Native Success Stories (And Aside on Sotomayor and Cultural Experience)

MORE Native lawyers please, especially ones like these three women, who overcame adversity to become successful attorneys who fight not only for their clients, but for their tribes. This story is an inspiration to anyone (man or woman of any race) who faces long odds in their quests to do what they want with their lives.

There's something else about the article that I believe is worth noting:

[Leonika] Charging, 35, grew up in White Shield, N.D., on the Fort Berthold Indian Reservation. Unlike Smith’s tribe, Charging’s people — the affiliated tribes of the Mandan, Arikara and Hidatsa — follow a matriarchal tradition. Women are given more leadership roles and control. That helped spur her to become a lawyer.

When she was young, she heard stories about how the federal government moved her people off their native lands in North Dakota and flooded the reservation to create a lake and park. The move caused decades of trauma that still lasts today, and Charging believes it wasn’t fair.

So she decided to take action to help prevent something like that from ever happening again. She decided to become a lawyer.

It's not that unusual for minorities who are aware-or particularly proud-of their cultures, to feel motivated to do something on behalf of their ethnic group once they achieve a position of influence in society. Or if not that, then at least to find their decisions in their lives and careers informed or influenced by their own personal cultural experiences, or the experiences of their culture and ethnicity as a whole. Many Native Americans grew up hearing about the history of the government's mistreatment of their tribes; perhaps as an attorney, this makes someone like Charging sympathetic to those who are mistreated by the government, or employers, or people who otherwise have some measure of unaccounted for power over their client's life. There's nothing at all unusual about this, which is why it boggles my mind that someone like Sonia Sotomayor can say that "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life" and then almost immediately be accused of racism (against-presumably-whites) for that statement. All that she meant was that as a woman of her background, she is familiar with ethnic and sex discrimination (and to a lesser degree oppression), certainly moreso than the average white, male judge who has not faced such discrimination in his life, a familiarity that is likely to make her more sympathetic to those who come before her court who are treated unfairly by those more powerful than they. This is not really that remarkable of a proposition; many white people who never face any discrimination are similarly influenced by their cultural experiences to believe that racial discrimination no longer exists in America. But the idea that a minority might have a better sense of fairness and unfairness is apparently a highly offensive notion to (mostly white) conservatives who believe that, all things being equal, racism, discrimination and unfair treatment has all been but oblitereted in our society.

Friday Round-Up

Some reading for your Friday afternoon:

1. Ayatollah Khamenei escalates the rhetoric and says opposition leaders will be responsible for "bloodshed and chaos" if the protests continue (a possibility that members of hard-line militias may seek to ensure becomes a reality.) He denies that Iran's election was rigged, though he's contradicted by what evidence is available. Roger Cohen lauds the protesters, and says Obama should be more firmly on their side. I disagree. I think Obama has struck the proper tone of concern and and caution. Were it not for our history of meddling in Iran's internal affairs, I might think otherwise.

2. More details on Obama's new financial regulations plan. Changes no doubt, but maybe not the sweeping kind that we need, according to Paul Krugman. The bad news on the economy in general has slowed, but Martin Wolf says we shouldn't be too hasty about thinking we're out of the woods yet. Certainly some (like small businesses) are having a very rough time of it.

3. Check for flying pigs outside your window, because today Ken Starr has come out in support of of Sonia Sotomayor.

4. John Shalikashvilli, chairman of the Joint Chief of Staffs under Clinton, says that arguments against gays in the military are poorly reasoned and insupportable.

5. Egypt shocked Italy 1-0 in Confederations Cup play yesterday, a result that perhaps shouldn't be so surprising given their play against Brazil. Fortunately for the U.S. this means that a win against Egypt tomorrow means the US will make it out of the first round. Unfortunately, the fact that Egypt is playing so well against the giants makes such a victory highly unlikely.

6. Today is Juneteenth round these parts, a celebration of the day that slaves were liberated in Texas.

Kill the Non-Lawyers

I've decided that we need a rule in this country. From now on, only lawyers or those with a deep and abiding interest in law should permitted to discuss and/or have any influence on Supreme Court nominations. I say this, because at least then it would be relatively easy to identify the hacks, because it would be presumed that everyone has at least a basic understanding of what judges do, and how law work. Why do I say this? Because of things like this:

Supreme Court nominee Sonia Sotomayor told a senator Thursday that she would follow a historic ruling affirming Americans' right to own guns for self-defense, but pro-gun activists said they still believe she'd work to limit gun rights if confirmed for the high court.
Democratic Sen. Mark Udall of Colorado said Sotomayor told him during a private meeting that she considers the 2008 ruling that struck down a Washington, D.C., handgun ban as settled law that would guide her decisions in future cases. In District of Columbia v. Heller, the Supreme Court held that individuals have a constitutional right to guns.

But the statement gave little comfort to gun rights activists. Conservative Sen. Jim DeMint, R-S.C., said that earlier in the week, Sotomayor told him in a similar closed-door session that she stood by an appellate court decision she signed this year that said the Second Amendment protection from curbs on the right to bear arms applied only to federal laws -- not state or local ones. That ruling, Maloney v. Cuomo, left it up to the Supreme Court to decide whether the rights recognized in the Heller case applied throughout the country.

The dueling statements called attention to a simmering and politically fraught debate over gun rights that transcends partisan lines. The issue is a tricky one for many Democrats who, like Udall, hail from conservative-leaning states in the South and West and often find themselves at odds with their party's liberal leaders' strong support for gun control measures. They're under intense pressure from gun rights advocates to oppose Sotomayor's nomination, so pinning her down on the topic is a major concern.

My rule would also preclude reporters from characterizing as "dueling statements" statements that in each case reflect a willingness to abide by judicial precedent. Allow me to explain. Sotomayor indicated that she has every intention of following the precedent established by the Supreme Court's recent decision in Heller, which binds the Federal Government in recognition of an individual right to own guns. However, Sotomayor was also a member of a 2nd Circuit panel that earlier this year issued an opinion in Maloney v. Cuomo ruling that the 2nd Amendment doesn't similarly apply to state and local governments. In their opinion, the panel plainly indicated that they were bound by an 1886 Supreme Court opinion, Presser v. Illinois wherein the Court held that the 2nd Amendment does not apply to state and local governments. So in both her statement regarding Heller, and her ruling in Maloney, she has indicated her commitment to abide by precedent. Of course this makes no difference to pro-gun organizations, who believe-like many idiotic Americans do-that judges "make" law based solely upon their feelings and their political inclinations:

The Gun Owners of America, another gun rights group, has already come out in strong opposition to Sotomayor and is urging senators to vote against her confirmation.

"We're communicating to the Senate that you may have cast some pro-Second Amendment votes, but those are all going to be canceled out if you vote for her, because when she gets (to the Supreme Court), she's just going to cancel out everything you've voted for anyway," Pratt said. He said the judge has "an unabated hostility to individual gun ownership."

Right, because that's what psychics in the employ of the gun lobby were able to discern I suppose. That statement reeks of the "judicial activist" trope that right-wingers love to drone on about. What they fail to realize (or simply dismiss) is that had Sotomayor done anything other than follow Supreme Court precedent in the Maloney incident, she would've been guilty of the worst kind of judicial activism, ignoring direct precedent to reach a politically convenient opinion. It's easy to say this because no less a conservative judge than Judge Easterbrook of the Seventh Circuit signed onto a decision earlier this month that held that the 2nd Amendment did not apply to the states, also because he felt that his court was constrained by Supreme Court precedent that spoke directly to the matter at hand. The pro-gun lobby isn't happy with that outcome either, but they don't run around protesting Eeasterbrook's "unabated hostility to individual gun ownership" because, well, that would just be stupid.

So-at least in this instance-Sotomayor indicates that she carefully considers the binding nature of precedent when issuing a ruling on a matter. This is the exact opposite of the definition of "judicial activism", though the pro-gun lobby's psychics would like you to think otherwise I guess.

U.S. Supreme Court and Judicial Campaigns

In March we touched on the Supreme Court's oral arguments in the case of Caperton v. Massey, a case that explored the point at which judicial campaign funding can give rise to an appearance of bias when contributors appear before the judge whose campaign they've contributed too. Yesterday the Supreme Court ruled for the plaintiff in the case, finding that excessive contributions by plaintiffs and defendants to a judge who is deciding their case can give rise to actual bias that violates plaintiffs' and defendants' due process rights under the Constitution. In March I wondered what sort of standard the Supreme Court would craft. Their answer:

There is a serious risk of actual bias when a person with a personal stake in a particular case had a significantand disproportionate influence in placing the judge on the case byraising funds or directing the judge’s election campaign when thecase was pending or imminent. The proper inquiry centers on the contribution’s relative size in comparison to the total amount con-tributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome.

They then find that the contributions in this case had a "significant and disproportionate" effect on the outcome of the case, and that the judge in the case should have recused himself. Of course this is a pretty squishy standard, a fact that Chief Justice Roberts makes clear in the dissent where he lists forty different questions (via Vince) about how the standard should be implemented. It's clear though that the real divide is between those justices who are opposed in general to campaign finance limitations, and those who are not, with Justice Kennedy (in this case but not in others) siding with the majority. I think this case is an excellent example of the dangers of our present system of campaign finance (generally private) but as you can see, the circumstances must be fairly extreme (one-sided contributions in a judicial campaign where the contributor is before the judge) before the Supreme Court is going to reach out to the Constitution to permit limitations on financing. I applaud the fact that five out of nine of the justices think that there's a point at which it's just too much, but this is a pretty backhanded way of getting at campaign finance reform. Impartiality in judges is hardly a guarantee whatever manner in which they are placed on the bench, but this case should be a lesson to states that appointments, or at least state funded elections, are by far the most reliable way to avoid the appearance of (or actual) bias on the bench.

The War on Empathy is Not Going Well

Following up Adam's post from yesterday, only the right-wing could think that a full-on blitzkrieg against the word "empathy" (defined as "the intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes of another" and thus a state of mind that 98% of Americans would agree in general is a positive attribute to possess) would somehow derail the nomination of Sonia Sotomayor. As usual, they are wrong. I suppose no one could have predicted that attempting to cast Sotomayor as a racist empath (an oxymoron if there ever was one) would fail to persuade the American public. 

The right's staggering hypocrisy over Judge Sotomayor

In an effort to prove that Sonia Sotomayor is some kind of racist against whites, conservatives are pointing to her decision in Ricci. In the case, the panel she was on ruled against a discrimination claim from a white firefighter who was denied a promotion when the city of New Haven threw out an exam that few minorities passed. Their thinking, of course, is that she herself was discriminating against this white man by not taking the claim seriously (even though her actual record shows no greater frequency in siding with minorities with discrimination cases). Conservatives are only emboldened in that many court observers think Ricci will likely be overruled by the Supreme Court (though probably in a 5-4 decision) prior to Sotomayor's Senate confirmation hearings.

But what's funny about this is that her decision is actually one of judicial restraint - she sided with the city's decision which itself was trying to comply with Title VII of civil rights law, and if the Supreme Court overrules this decision it will be sailing a new course. Normally, conservatives aren't supposed to like it when judges override legislative and executive governments. So could it be in this case conservatives just didn't like the outcome of this decision - something they see as "reverse racism?" (Perhaps they just have empathy towards the white firefighter in this case?). The problem is their whole argument against Sotomayor's nomination is that a judge isn't supposed to care about the outcome of a case. That they are supposed to just "follow the law" and not act like an activist judge (by, say, overriding the decisions of elected officials).

The real problem is that they think Sotomayor will be too predisposed towards outcomes that favor minorities (which, again, the record does not show) and not whites (which would be an irrational, racist fear). It has nothing to do with any intellectually honest or consistent argument surrounding judicial philosophy whatsoever. And that's why this line of attack should be completely disregarded by any conservative who wants to have a real debate on the role of the Constitution and other substantive disagreements in the upcoming debate on this nominee.

Jeffrey Rosen Tried His Best

But President Obama has decided to nominate Sonia Sotomayor for the Supreme Court.

Saturday Morning Reading

A few things of interest this morning:

1. Did you know that Georgia still has segregated proms? Separate but equal you know, except not really. I think the quickest way to fix this would be for the black high schoolers to crash the white proms. Once white parents predictably overreact and thus demonstrate their racism to one degree another, there will be enough public pressure to change this.

2. More on Obama's "preventive detention" proposal. Thanks, but no thanks. Personally, I don't feel like living in The Minority Report. Either people are planning to commit a terrorist attack, and thus committing a crime, or they aren't.

3. Bob Herbert weighs in on Troy Davis, who is slated to be executed even though there is compelling evidence that he did not commit the crime he is convicted of. When a man can conceivably be put to death despite compelling questions regarding his guilt, it is an indictment of the death penalty in general.

4. The Pakistan Army's offensive against the Taliban in Swat is not going as terribly as was feared it might, but neither are the Taliban proving to be an easy enemy to oust.

5. Republicans are staking their electoral hopes on a desperate wish for Obama to fail, and therefore doing the best they can to avoid dealing with ever-increasing unpopularity of their proposals and any need for party reform.

6. A profile of Leah Ward Sears, the first African-American woman to be Chief Justice of the Georgia Supreme Court and potential nominee for the U.S. Supreme Court.

7. I had a chance to watch the streaming webcast of the Cliburn Competition, which kicked off yesterday. I was very impressed by the fact that their webcast is actually a full-fledged broadcast, complete with commentary, fillers between the performances, and backstage interviews with the competitors. Various camera angles make it easy to watch the competitors as they play, and the sound quality is impressive. The competition continues through June 7th, and you can watch it online here.

Judging Sotomayor

As I have essentially spent all of my time telling you what not to rely upon in judging Sonia Sotomayor's work as a federal judge (Jeffrey Rosen in particular, anonymous comments in general) you might be wondering what you should consider in weighing her as a nominee for the Supreme Court. To answer that question, here's Tom Goldstein at SCOTUSBlog, who breaks down Sotomayor's rulings on various aspects of the law. Go, and be enlightened.

Sotomayor Shenanigans?

If you read this blog, you're well aware of the controversy stirred up by TNR's legal affairs writer and law professor Jeffrey Rosen, who wrote what a gossipy, unflattering piece on prospective SCOTUS nominee Sonia Sotomayor that relied almost entirely upon anonymous quotes handpicked to leave the impression that Judge Sotomayor isn't all that nice or all that bright. In response to the flap that he stirred up, Rosen followed up with another article "clarifying" his first, in which he cited to comments made about Sotomayor in a publication called the Almanac of the Federal Judiciary, a publication that purports to offer balanced profiles of federal judges by quoting lawyers who have argued cases before them. Rosen cites some comments in the most recent Almanac that support the unsourced criticisms he printed in his initial column (though the comments in the Almanac are hardly as malicious as the ones anonymous commentators provided Rosen.) But Rob Kar, a law professor at Loyola Law, notices an odd change in the tenor of the comments in the Alamanc from 2006 and before to 2007, which he details in Drudge-like fashion: 

Scandal! Scandal! I smell a true scandal in the air!

After wondering about discrepancies between the lawyerly evaluations that Jeff Rosen cited in his hit-piece on Judge Sotomayor and some earlier ones that I had accessible, I had someone retrieve the full set of evaluations from her time on the Circuit Court. It turns out that in every year that Judge Sotomayor has been reviewed, lawyers have literally raved (and I am using their word, not mine) about her legal skills (and have been very respectful, if also a bit fearful, of her judicial temperament)...

Until suddenly, in 2007, and shortly before Obama was elected, everything changed on a dime, and she suddently became a "DUMB BULLY." (The most recent Almanac is 2008, so she only became dumb just during the last election season, when--a number of people are starting to think--some people who haven't wanted her on the Supreme Court may have been doing something scandalous...)

He then goes on to list a selection of quotes from the 2006 Almanac, almost universally favorable, contrasting them with the comments printed in the 2007 almanac that have been widely circulated amongst the blogs and are cited by Rosen in his most recent article. He also speculates without confirmation that Megan Rosen, the editor of the Almanac may be Jeffrey Rosen's sister-in-law. So, why the sudden change in tone? Nobody knows yet, but I have a feeling we'll hear more about this. 

Rosen Responds

Rosen has this response in today's New Republic, to the criticism over his gossip-mongering hatchet job of Sonia Sotomayor on Monday. Excerpts:

Many people have mischaracterized my argument, and I can understand why. 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. That's why I concluded the piece not by suggesting that Sotomayor was unqualified for the Supreme Court, but by suggesting that "given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble."

Readers have asked for more information about my sources. A few weeks ago, I received phone calls from eminent liberal scholars I know and trust. These scholars closely follow Sotomayor's work and expressed questions about her temperament. They did not have axes to grid or personal agendas; they are Democrats who want President Obama to appoint the most effective liberal Supreme Court justices possible and were concerned Sotomayor might not meet that high standard. They put me in touch with others in the same situation--mostly former Second Circuit clerks and prosecutors who have argued before her--and nearly all of them expressed the same view, with exceptions I noted in the piece. None of these people would have talked to me without the promise of anonymity: some still argue before the judge, and others continue to interact with her...Anonymous comments aren't ideal, but there was no other way, in this situation, to get people to share candid questions about judicial temperament.

Rosen then goes on to walk back his criticism a little bit, but he clearly has no remorse over using entirely anonymous sources whose credibility and intentions we are supposed to accept merely at his word, to portray Sotomayor as not-that-bright and not-that-nice. I could say more, but it hardly begins to approach this roasting from Glenn Greenwald:

What really happened here is now manifest -- and typical. A couple of Rosen's secret friends don't like Sonia Sotomayor and called him to encourage him to smear her in the pages of The New Republic. Rather than do the work to determine if these "questions" about her abilities had merit -- by, say, conducting a thorough survey of her key judicial opinions the way a conscientious law professor might -- he instead set out dutifully to undertake the mission assigned to him by these "eminent legal scholars" by calling the people they handpicked for him, who then eagerly attacked Sotomayor. Rosen then mindlessly wrote it all down -- including facts that were either false (the footnote) or highly distorted (Judge Cabranes' New York Times statement about Sotomayor, which was clearly a compliment, not a criticism), and then sent it to TNR, which slapped a provocative and (by Rosen's account) misleading headline on it and then happily published it. That Rosen himself was a chief champion of John Roberts, and had already expressed concerns that Obama might take diversity into account when appointing someone to the Supreme Court, undoubtedly made Rosen more than happy to be chosen to carry out this dirty task against someone who is most assuredly not part of his circle.

In other words, Rosen did what the modern journalist of the Respectable Intellectual Center does by definition: he wrote down what Serious People told him to say, agreed to protect their identity, and then published their very purposeful chatter without doing any real work to verify, investigate or scrutinize it. As a result, a woman who spent the last four decades of her life using her talents and intellect and working extremely hard to reach amazing heights in the face of great obstacles is now widely viewed as an intellectually deficient, stunted, egotistical affirmative-action beneficiary who has no business being on the Supreme Court -- all thanks to the slimy work of Jeffrey Rosen, his cowardly friends of the Respectable Intellectual Center, and The New Republic.

So, mission accomplished, Rosen?

More on Rosen's Hatchet Job

Glenn Greenwald, who unlike Jeffrey Rosen bothers to actually inform himself about the subject of his writing, offers this scathing criticism of Rosen and The New Republic for their ridiculous hit job on Judge Sonia Sotomayor. Most especially, he focuses on the strange desire of TNR to be the liberal magazine that right-wingers love to turn to:

Based on those experiences, I'm genuinely amazed at how -- overnight -- she's been transformed in conventional wisdom, largely as a result of Rosen's piece, into a stupid, shrill, out-of-her-depth Puerto Rican woman who is being considered for the Supreme Court solely due to anti-merit, affirmative action reasons. The New Republic thus fulfills its principal function in life: to allow the Right to spout any sort of invective and bile and justify it by reciting the "even-the-liberal-New-Republic-agrees" defense.

In the last 24 hours alone, Rosen's article has been used by three different National Review writers -- who, I'd be willing to bet lots of money, know virtually nothing about Sotomayor -- to declare her to be "dumb and obnoxious." That's a phrase they've revelled in repeating three times now (and counting), culminating with this: "I'm sure Mark H. is right about Sotomayor's being dumb and obnoxious, just as Derb is right about her being female and Hispanic is all the [sic] matters." The amazing speed with which so many people who know absolutely nothing about her are willing, indeed eager, to assume that she's stupid and doesn't deserve her achievements -- based on the fact that she's Puerto Rican and female and Rosen published some trashy, unaccountable gossip feeding that perception -- is really remarkable.

Greenwald then goes on to recount his personal experience with Sotomayor, which is both fairer, more credible, and more useful than any of the unsourced gossip that Rosen regurgitated in his column.

UPDATE: Via Local Crank, here's an endorsement of Sotomayor by Joe Conason.

UPDATE II: Another couple of interesting links. First, Adam Serwer at TAPPED on Rosen's particular issue with non-white, non-male SCOTUS nominees. And M. LeBlanc on how, strangely, the sorts of assertions that Rosen prints about Sotomayor are never made about white, male judges.

TNR's Hatchet Job on Sotomayor

The New Republic's Jeffrey Rosen whips out the hatchet and does a number on Judge Sonia Sotomayor, a presumed front-runner to fill the soon-to-be-retiring Souter's seat on the Supreme Court. Frankly, TNR should be ashamed of even running with this sort of nonsense:

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.

Supreme Court Nominee Ideas

I just realized that I blogged about the possibility of Souter retiring two weeks ago. And yet somehow I was also completely surprised at the news that Souter was retiring. Obviously, blogging neither requires nor encourages functioning long-term memory. Anyway...

At first I saw the headline "Let's Make Clarence Thomas's Worst Nightmare Come True" and thought that the author must mean someone who keeps turning to Thomas during oral arguments and asking him what his opinion is, or if he has any questions. But no, it's worse than that: Nell Scovell suggests appointing Anita Hill to the Supreme Court. Which yeah, would be a little awkward.

Souter To Retire

Supreme Court Justice David Souter has indicated that he intends to retire at the end of the Court's present term. This announcement was not entirely unexpected since (as Adam reminded me) Court watchers have been wondering at the absence of new law clerks for Souter's next term. Still, it now opens up furious debate over who Obama will nominate to fill Souter's seat on the bench. There's some speculation that Obama might select a woman for the court (a move I support since there is now only one woman serving on the bench.) Here's a good list of potential nominees. The next several months should be fairly entertaining.

Completely Unsubstantiated Supreme Court Rumor

Is Justice David Souter planning on retiring? 

Supreme Court Denies Philip Morris' Appeal

In a somewhat unusual move, the Supreme Court has declined to issue a ruling in Williams v. Phillip Morris, a case they already heard oral arguments on in December. It looks like the Supreme Court was not up to the task of wading through this particular minefield again. They declined to issue any sort of explicit standard for limiting punitive damages the last time around, only to have the Oregon Supreme Court re-affirm the previous judgment on "independent state grounds." If the Court was looking to limit punitive damages, there were only a couple of ways they could do it, either by rebuking the Oregon Supreme Court for doing an end-run around the Supreme's ruling, or avoiding that issue and tackling directly the ratio of punitive damages that they avoided addressing the last time around. Apparently the needle proved to be too difficult to thread, and the Court has now declined to weigh in on the matter of punitive damages at all. It's hard to imagine the issue being addressed by the Court anytime in the near future, though that might change if a case with friendlier facts and a tidier disposition comes along.