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The Online Debate Over Judge Sotomayor

There once was a time when Supreme Court nominees faced scrutiny only from a Senate confirmation panel. And while the confirmation process proved troublesome for one Justice, for most others the procedure was still fairly benign.

But fast-forward to 21st century. Now it's not merely nominees who come under fire; even potential nominees are fair-game online. Consider, for example, the ongoing controversy over short-lister Sonia Sotomayor, who currently sits on the 2nd Circuit. The brouhaha erupted following a critical profile of Sotomayor by Jeffrey Rosen in The New Republic. Rosen writes:

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."

Rosen also questions Sotomayor's legal capabilities. He writes that former clerks and prosecutors expressed concern about her command of technical details, while others acknowledged her reputation for being "not the brainiest of people."

At least one former Sotomayor law clerk, Gerard Magliocca defends her in a post at Concurring Opinions. Magliocca disputes Rosen's charge that Sotomayor is "a bully" and also says he was impressed by her intellect.

In addition to being criticized for his accuracy, Jeffrey Rosen is also being taken to task for his reliance on anonymous sources. At Salon.com, Glenn Greenwald asserts that:

Jeffrey Rosen's New Republic smear of Sonia Sotomayor's intellect and character -- based almost exclusively on anonymous, gossiping "sources" -- is such a model of shoddy, irresponsible, and (ironically enough) intellectually shallow "journalism" that it ought to be studied carefully. Standing alone, it reveals quite a bit about anonymity-dependent "reporting" generally, The New Republic specifically, and how much of our political discourse is conducted.

Likewise, Scott Greenfield Simple Justice labels the law clerks "anonymous cowards," writing:

Who exactly are these young men and women to offer opinions on Judge Sotomayor's general intellectual prowess? No doubt they see themselves as brilliant, as every circuit clerk does, and far better able to comprehend than the doddering old fools in robes for whom they work. Do we all share their high opinion of themselves, such that they are entitled to question the intellect of a circuit judge? Even if accurate, does this reflect what we, as opposed to they, find important in a Supreme Court Justice? I sense that we might not all share the same vision of critical attributes that the Scions of Eli hold dear. I bet some of us would happily trade some pragmatism for intellect any day, not that I'm suggesting that would be the case. And we certainly know that the current writing on the court leaves much to be desired.

Is Judge Sotomayor a special case, or is this the kind of reporting and controversy that we can expect as the President's nomination process moves forward? Law professor Paul Campos' Daily Beast post on Sotomayor and fellow potential candidate Elena Kagan, "Fat Judges Need Not Apply," suggests we've only seen the beginning.

Posted by Carolyn Elefant on May 5, 2009 at 03:28 PM | Permalink | Comments (0)

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