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Anatomy Of A Sotomayor SCOTUS Whisper Campaign

The campaign against Second-Circuit Court of Appeals Judge (and potential SCOTUS nominee) Sonia Sotomayor began in earnest when nameless former clerks on that court told The New Republic's legal correspondent Jeffrey Rosen that the Hispanic judge (and one-time George H.W Bush appointee) is too temperamental--and not intelligent enough--to serve on the Court.

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 charges have been challenged loudly--almost immediately after the article came out, other people familiar with her work came forward to call the piece baseless. But once the cat was out of the bag, there was no stuffing it back in. Almost immediately, conservatives picked up and...advanced...the meme. National Review's Mark Hemingway called her "dumb and obnoxious," inviting a classy riposte from his colleague John Derbyshire, who cautioned that "Judge Sotomayor may indeed be dumb and obnoxious; but she's also female and Hispanic, and those are the things that count nowadays."

To The Atlantic's Marc Ambinder, this represented evidence that "Sotomayor's public image [is] at risk" and today the Washington Post quoted an anonymous lawyer, supposedly involved somewhat tangentially in the Justice Souter replacement process, saying Sotomayor will be battling the perception that she "doesn't play well with others."

But the coup de grâce may have come last night when Sotomayor bashing traveled outside the beltway, and on to the Late Show, where David Letterman portrayed Sotomayor as a Spanish-speaking version of Judge Judy. Watch:

What remains unclear is what, precisely, has animated the whisper campaign. Glenn Greenwald raised one intriguing suggestion:

Jeffrey Rosen's brother-in-law is Neal Katyal, the current Deputy Solicitor General in the Obama administration. If Sotomayor's prospects are torpedoed, that could clear the way for one of the other leading candidates to be named to the Court: current Solicitor General Elena Kagan. The selection of Kagan (rather than Sotomayor) would almost certainly result in Rosen's brother-in-law (Katyal) becoming Solicitor General. Additionally, Katyal himself was once a clerk for a Second Circuit judge, obviously raising the question of whether he was one of the anonymous sources for his brother-in-law's hit piece disparaging Sotomayor's intellect and character.

But Katyal served as a clerk on the Second Circuit in 1995 and 1996, two years before Sotomayor was belatedly confirmed to the court on October 2, 1998 by a Republican-controlled Senate. I spoke to Rosen by phone today, and he characterized things differently from Greenwald. He says Katyal was not one of his sources. He confirmed that a number of people--former clerks and federal prosecutors--approached him in a span of about two weeks, each voicing similar concerns about Sotomayor's temperament and fitness. He says that they were nearly all Democrats and doubts that they were animated by any ulterior motives. But, he says, he will soon be addressing the controversy on The New Republic's website, and we'll bring that to you when it goes live.


107 Comments

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why is it an insult to be compared to judge judy? i love judy!

and i think its terribly wrong to assume its an insult or some form of "bashing" to be compared to her.

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I'm a trial and appellate attorney. The public can say what they want about Judge Judy, she is wicked smart. And funny. I would have hated to practice in her courtroom (which is a compliment to her).

As for the author of this piece, why does he think that "animated" means the same thing as "motivated?" He needs a dictionary.

I don't know what to make of the Letterman piece. It came out of nowhere.

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The motive, if not the specifics, is clear. What isn't clear, is what animated the campaign. It would seem to me an entirely appropriate use of the word. Either way, everyone loves a condescending lawyer who's anxious to share her story.

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the public can say anything they want because YOU know the truth about judge judy.

she doesnt impress me as any "smarter' then the rest of the tv judges.

and i cant watch her because she is a clown and everything a judge should not be.

i guess thats what passes for tv these days.

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When did (scripted and smart-assed) common sense morph into "wicked smart"?

I'm not sure I would want your counsel if you can't tell the difference between a TV show, constructed and edited for puerile entertainment, and reality. I mean, c'mon counselor, it's not a courtroom — it's a TV set, with paid participants (actors)! Do you really have that many afternoons off that you can afford to hang watching JJ?

I don't mean to be overly snarky, but "wicked smart" combined with Judge Judy triggered overpowering cognitive dissonance. It's Judge Judy for chrissake! The geniuses are her agent, producer and writers.

As to who will be the next SCOTUS justice: I'm putting my wholehearted support behind the first prosecutor that attains 20 torture convictions; at least 14 for conspiracy to commit torture.

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I agree. I've known Judge Judy for many years and I can tell you she's a very intelligent woman with an incredibly strong and admired disposition. Anyone should be proud to be compared to Sheindlin.

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A "strong and admired disposition." By whom?

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I hope you're joking!

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Hmmm.  This kind of article I would have expected to see in NRO instead of TNR.

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Not surprising at all from Jeffrey Rosen, who is almost invariably a willing patsy for these types.

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One of the pleasures of growing old is that you've lived long enough to remember things that other people have forgotten or never knew. Consensus forms and reforms about someone's politics based upon the "what have you done for me, lately" rubric—and yesterday's comrade becomes today's enemy or vice-versa.

The premiere example of this lately is, in my opinion, Paul Krugman. In the middle-to-late 90s when he began writing for Slate and the anti-globalization movement was peaking, Krugman wrote a number of blistering diatribes against the anti-globalists. During that period, he was among the progressive movement's chief enemies, considered either a foot-soldier for the conservative plutocrats, or at least a useful idiot. Then, of course, came Bush's election and Krugman's move to the New York Times. When his blistering attacks turned against a conservative President, Krugman became one of the progressive movement's greatest contemporary heroes. And he remains so (deservedly).

Rosen's history and the popular perception of him is nothing near as dramatic, interesting, or extreme. Although for the most part his politics and judicial views are solidly progressive, from the beginning he's occasionally gone against the grain, most significantly with regard to Roe v Wade. (He's always been pro-choice—but Rosen has long argued that RvW, by taking the abortion debate out of the democratic domain and into the judicial, did long-term damage to the abortion rights movement.)

Anyway, of particular interest with regard to the current view of Rosen, exemplified by your comment, is that it's not at all the case that Rosen has some long history of opposing progressive SCOTUS nominees and arguing instead for, say, centrist white men.

Specifically, we basically have Jefrey Rosen to thank for Justice Ruth Bader Ginsburg. That's not an exaggeration.

Rosen inarguably brought Ginsburg to the attention of the public and power-brokers when he began writing about possible SCOTUS nominees in 1993. He wrote about her numerous times and she emerged as his and TNR's favored pick.

"So what?", you might say.

Well, I can't find a link to a quote, but I very clearly recall someone from Clinton's team revealing that they hadn't heard of Ginsburg until they read about her in TNR. They brought her to Clinton's attention, and the rest is history.

And Ginsburg's made a fine progressive justice. I only wish she could continue to serve for another twenty years.

It's not my intention to defend Rosen unequivocally. Maybe for whatever reason, he's been moving rightward continuously since 1993. I don't pay close attention to him—I stopped reading TNR (with prejudice) when Michael Kelly was editor. I only know of what Rosen has written since then mostly second-hand. And, like so many people associated with TNR, he seems to have taken what was a healthy inclination towards independence and turned it into a full-blown case of cancerous contrarianism. Even so, this notion that he's in the pocket of the covert right-wing doesn't survive an examination of history.

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Those two are not as dissimilar as one would think. TNR has been a source for some of the most bone-headed "third-way" sell-out shit real Democrats have been buried under since Clinton was in office.

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Yeah, I gave up on TNR (totally non-relevant), a long time ago.

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I think an openly gay judge would be great just to watch Scalia's face. Any day that makes that grouchy SOB uneasy is a good day.

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Glenn Greenwald for SCOTUS! He's a white dude, but he's also gay and on top of that, he's much younger then the other candidates. Why wait until someone gets to their 50s?

As long as we're issuing life tenure here, why not grab them right out of law school?

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Why not appoint a non-lawyer? Seriously. I think those yahoos could use a good dose of reality from, I dunno, let's just say . . . hmmm . . . a technical writer? Just as an example.

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Glenn would be a hoot. The problem is that he hasn't played nice with the Obama Admin, and has (correctly) crapped on all the "moderate" Senators on both sides of the aisle at one time or another over the years... probably all of them in the past month. :) I doubt Glenn would get out of committee. People like DiFi wouldn't vote for him.

Which is sad. Glenn on the SCOTUSA would be a great hoot. Scalia would probably try to strangle him. :)

John

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Recalling Bush and Rove's disappointment at their colleagues' torpedoing of their efforts to reform immigration and thus woo Hispanic voters (which backfired when more Hispanics voted for Obama than McCain a few years later), I eagerly await the Hispanic community reaction to their torpedoing of a Supreme...

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I said the same thing jzap. It was......interesting to read.

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Obama should nominate the most qualified person irrespective of gender, race, or ethnicity. If that's Sotomayor, fine. If it's not, then there is no way that she should be appointed.

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There is no one one "most qualified" person for the SCOTUS in the entire country. There are probably hundreds of people who are perfictly qualified.

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That's not true. There are judges, law professors, and practicing lawyers whose work has distinguished them among their peers. Once those five or ten are culled, the decision on who to choose should be based on the skillset that Obama values most, e.g., temperament, persuasive ability, etc., rather than race, gender, or ethnicity.

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Right on Dude, while half the country is made up of women and about thirty percent are non-white, there is absolutely no reason to consider that at all. I mean old white guys have been running things for a long time and look how well things have been going. Take a look at this line-up and tell me that we need to change it:

http://civilliberty.about.com/od/ussupremecourt/ig/Know-Your-Supreme-Court/

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Um Dude,

If you truly believe in equality, and understand who are the top candidates for the Court based on merit, there is no need to factor in anything but ability.

A non-white male can get the job based solely on their qualifications absent other considerations.

Is that right on enough for you?

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Why hold Obama's pick(s) to a higher standard than the previous appointees?

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How far do you want to extend that inquiry?

Should Obama invoke a religious test for DOJ employees?

Should the US Attys he appoints by made on a purely political basis?

Should he use signings statements to abrogate the separation of powers doctrine?

Please expand on your point.

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re: irrespective of gender, race, or ethnicity

That sounds nice to say, but there is a seriously undervalued currency in your formula for egalitarianism...

And that's perspective. As much as we all like to fancy law as this arbitrary truth that only completely objective soothsayers can interpret for us, it's not. While some of us are better able to detach from our upbringings, everybody comes from the values they were consciously and unconsciously socialized to accept -- there's not total escape from that. And it's not just about some quantifiable "most qualified" jurist based on test scores or most convictions or whatever metric you choose. And that's where perspective comes in. The wider the viewpoints represented on the Court in general, the better, or more fair, the overall interpretations of constitutional law we are going to get.

Of course, I believe the white male perspective has been soooo overrepresented for soooo long on the court, I wouldn't mind if the pendulum swung another way for a century or so.

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I disagree. When you have read hundreds, if not thousands, of judicial opinions, law review articles, and legal briefs, it isn't hard to pick out which ones are written by lawyers who possess the most intellectual clarity and heft. These writings are a far better metric than any standardized test score.

The people who possess that intellectual clarity and heft are not solely white males.

Factor in oral argument skills, when relevant, and there is a vast body of pertinent information on which to make a sound and objective decision, which will, of course, be informed and guided by the desire to choose a person whose theory of constitutional interpretation is in line with that of Obama.

If, however, one group does not currently have a person that meets the foregoing criteria, the remedy is to appoint more members of that group to the lower federal courts so that they may one day be ready to be elevated to the USSC, not to choose a member of any particular group merely for political purposes.

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"When you have read hundreds, if not thousands, of judicial opinions, law review articles, and legal briefs, it isn't hard to pick out which ones are written by lawyers who possess the most intellectual clarity and heft. These writings are a far better metric than any standardized test score."

Under this criteria, then it is hard to see how Earl Warren -- who was 12 years removed from being a prosecutor and had never sat on the bench -- could be appointed Chief Justice. Yet, without Warren's leadership abilities, it's questionable whether Brown v. Board of Education would have gotten the unanimous vote it necessarily received.

There's more to the job of justice than a brilliant legal mind -- although that certainly doesn't hurt. Life experience, temperament and persuasive ability are just as valuable -- and those don't always come through in published opinions and law review articles.

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That's not necessarily true. Since Warren was a district attorney and an AG, he had undoubtedly authored numerous briefs, which is one of the criteria that I had listed.

I view a prospective nominee's writing ability as a threshold test because it provides insight into the person's ability to think as well as their grasp of complex legal issues. Once that test is met, the nominee's unique experience (in this case as a governor) can be factored in.

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Since I am male and you could visually identify me as "white," would you assume that I have "the white male perspective" that appears to trouble you? If so, would this behavior remind you of anything else?

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So... if she's not qualified, she shouldn't be appointed? Thanks for the insight.

What you're really saying is that you suspect Obama is considering her primarily because she's female and Hispanic, yes?

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No, I'm merely responding to the rampant speculation.

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I don't see the connection between Sotomayor-bashing and the Letterman clip. The clip seems like an example of the quirky, totally random humor that Letterman is known for. If the clip had been about Sotomayor being dumb, then I could see it. Here, I just don't.

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I agree -- I think this is Letterman making fun of the commentary about Sotomayor -- not of her herself. It's funny because it's the argument (whispering campaign) by the people already aligned against her taken to its full absurdity.

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Yeah, right. This whole thing stinks like my last turd.

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Rosen's was a especially sleazy bit of Beltway whisper journalism. All the worse because Rosen made no effort to delve into what is obviously the best evidence of her work as a judge . . . nearly 17 years' worth of written opinions.

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I don't agree. I don't know who the nominee should be, though from what I know Sotomayor seems like a strong choice (as Wood and Karlan would also be). But this whisper campaign is pretty insubstantial even on its own terms and Sotomayor would not be a hard sell at all if Obama decides to nominate her. If sniping from conservatives, and anonymous jibes from Democrats who favor another candidate, are disqualifying, no one could be nominated.

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Oops, that was meant to be a response to calchala's second commenting below, positing that the whisper campaign dooms Sotomayor's candidacy.

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I doubt that Rosen's column has anything to do with the Obama administration trying to sabotage Sotomayor.

Furthermore I thought Letterman's take on Sotomayor was INSULTING. I thought it stereotypical and not worthy of Letterman himself. I am absolutely sure that Letterman got big push back from Puerto Rican community for that racist clip.

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And by the way -- this is twice in two days that a huge, jump-to-conclusions headline has appeared on the front page of TPM in an enormous font: yesterday the Specter comment about Coleman that might very well have been a joke, and now this. I'm a liberal and my political sensibilities line up relatively closely with TPM's, but these types of inaccurate, screaming headlines are no better than the things that show up on Drudge or Politico. The right gives us plenty of ammunition on its own -- there's no need to make shit up.

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Disagree.

I was watching Letterman last night and it immediately struck me as offensive.

It's one thing to mock a politician or public figure for being stupid or saying something goofy. What did Sotomayor do to earn this mockery? She's got a funny last name and (presumably) an accent, that's what. The skit seemed to be mocking the very idea that a "hot-blooded Latina" belongs on the bench in the first place.

Even if Letterman's librul elitist New York writers didn't intend it, I'll bet his mildly xenophobic heartland audience saw it that way.


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The point isn't whether it was offensive. The point is whether Rosen's anonymously sourced article indirectly caused Letterman's skit. I see no evidence of cause and effect between the two events, and TPM is acting like any other partisan website in trying to sensationalize this by inventing such a connection.

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Bullshit. Rosen's article is basically all that's out there in the MSM about Sotomayor. Letterman's bit was pure, ignorant racism.

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Absolutely. Listening to Letterman, you'd think Judge Sotomayer was the legal equivalent of Lainie Kazan's alter ego of stage and screen:

Rosie Velez, saloon singer (Divine): "So, what did you think?"

Marguerita Ventura, saloon owner (Lainie Kazan): "Honey -- (spits on the ground) -- you sing like you look."

-- Lust in the Dust (1985), directed by Paul Bartels

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Sad to say, I don't think Sotomayor is going to be the pick. Her image is out of Obama's control with this disgusting whisper campaign. That said, look at Sullivan and Karlan, two openly gay academics with absolutely impeccable credentials. There's nothing be said about them at this point, and if the GOP attacks either of them for their sexuality, they can kiss the gay vote goodbye.

Further, Karlan has worked with Pres. Obama when he was Professor Obama at Chicago. Obama helped edit an Election Law Textbook that Ms. Karlan helped write. I do believe she's got a better than decent shot at being the choice.

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Obama is a cautious politician. I doubt very seriously that Obama will appoint an openly gay Supreme Court justice. Obama doesn't like conflict and that would be major conflict.

Based upon what Senators are saying that they want someone who has real life experience and hasn't been a judge for life. Thus, I wouldn't be suprised if Obama appoints a Congresswoman or something else for the Supreme Court.

In terms of Sotomayor, I am not worried about the whisper campaign what's so ever. I think it is from jealousy because she is the front runner. I think the more concerning thing about Sotomayor is that she may have too long of a paper trail ie she voted for affirmative action against the white fire fighters while she is a 2nd circuit justice.

I just don't think that Obama wants a huge open discusstion about affirmative action off the bat.

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In terms of caution, here's my thoughts. No matter who he picks the culture wars will be reinvigorated.

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In terms of caution, here's my thoughts. No matter who he picks the culture wars will be reinvigorated.

I think you're absolutely right about that. So Obama should just forget trying to avoid controversy and pick someone with sterling credentials that he thinks will be a strong justice and who is worth going to the mat over.

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Pamela Karlan herself suggested Sen. Dick Durbin (D-IL) and Boston federal circuit judge Nancy Gertner.  She was more circumspect on Kathleen Sullivan.

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I personally think Kathleen Sullivan would be an EXCELLENT choice, as she has the pure Constitutional law chops needed to counter Scalia, Roberts & Alioto. She's written THE BOOK on Constitutional law.

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I've got news for you. The GOP blew off the gay -- Oops! Freudian slip! -- I mean, wrote off the gay vote good-bye a long time ago.

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Barney Frank is the obvious choice to me.

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Linda Greenhouse

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Greenhouse is awesome, but she isn't a lawyer, which isn't constiitutionally disqualifying, but it would be a first.

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So let me get this straight: these people approach Rosen; he did not go out and seek anyone's input. Further, Rosen has stated that he is not familiar with Sontomayor's record, something you would think a "reporter" would remedy prior to blathering about her in a national forum.

So what we have here is a bunch of disgruntled former acquaintances telling tales out of school to a TNR reporter, who himself has no data, and hasn't gone out to get different opinions. And, lucky them, the former acquaintances are granted anonymity, so they can say whatever nasty-ass thing they want about Sontomayor. And they're further lucky in that Rosen is ignorant of Sontomayor.

Yeah, sounds pretty fair and balanced. Sheesh.

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Absolutely agree. Rosen and whoever edited him at TNR should lose their jobs.

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You apparently aren't even familiar enough with her to spell her name correctly.

I think you have totally mischaracterized Rosen's piece. He didn't say he was not familiar with Sotomayor's record; he said he had not read enough of her opinions to have a confident sense of their competence (though he has since then read more of them, and finds nothing to contradict his initial impression that they were OK but not particularly brilliant), and had not talked to enough of both supporters and detractors to form a final opinion of her.

Maybe that makes his piece premature, but I didn't find it unfair or unbalanced at all. He said up front that she had many strong and enthusiastic backers, he identified the perspectives of the people who spoke to him, even though he could not give names, and he freely admitted that he didn't yet have enough information to make a definitive case one way or the other. All he was saying was, "Yes, she has enthusiastic backers, but there are some who have reservations about her as well." I, for one, think it's important to know about those reservations early on. You wouldn't want Obama's first SCOTUS appointment to turn into a Harriet Miers fiasco.

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This whole thing has been disgusting. As a single, outspoken woman of color myself, this shit has been making my blood boil.

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Hell's bells, Willow; I'm a married, quiet, straight white guy, and it's been making my blood boil. I can't imagine what it's like for a minority woman.

(Well, I'm Jewish, but you know what I mean.)

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It SHOULD make it boil.

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Hotheaded? Good!

The more Obama SCOTUS Justices I see screaming in the faces of Scalia and Roberts the happier I'll be.

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Let's stop making titles with just the name Sotomayor. Without further clues in the title, I thought the article was about the immortal Javier Sotomayor. His world record will probably stand for another decade or more (2.45m).

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Although Sotomayor's world record in high jump has not been equalled or even approached since set in 1994, and although 17 of the 24 highest jumps in recorded history are his, TNR sports commentator Jeff Rosen has spoken to anonymous sources who believe these jumps were aided by updrafts.

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I read that article and many of the anonymous complaints about her are ones frequently made about successful women who seek to lead and dare to disagree with men publicly. She talks too much? She's bossy? Excuse me, basically they are saying she doesn't know her place.

I would submit that there is not a white male in America who is qualified for this nomination. Many of the cases heard before the court involve issues specific to women including abortion, pay equity and so on. The Court is seriously out of balance, women are in the majority and are half the lawyers yet have only 1 seat. The court needs a balance of life experience and needs a woman. No man has that qualification of being on the receiving end of the decisions about whether contraception is covered, about controlling one's body and about pay equity ...so they are not qualified. not even remotely qualified.

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Yep - did you read Susan Neilsen in the Oregonian this morning? She makes the same point - life experience is different; gender and race are both factors in that experience. The sole perspective of privileged white males does not make for equal justice.

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http://prawfsblawg.blogs.com/prawfsblawg/2009/05/on-the-brilliance-of-people-like-judge-sonia-sotomayor-and-barack-obama.html
Quote:

"Given these facts, I should probably be less surprised than I am to see some of the initial reactions to Judge Sotomayor mirroring early reactions to Obama’s presidential candidacy. Early in the last primary season, I remember a number of people saying that Obama was not “as smart” as Hillary Clinton—at least until people began to catch onto his sheer genius at things like
(1) reframing seemingly intractable issues in ways that might move us forward and out of stale debates;
(2) identifying and articulating the core values of social practices in ways in ways that people who were once skeptical find compelling;
(3) charitably understanding the fullest range of seemingly diverse positions, and the kinds of concerns and warranted hopes that lead to their articulation; and
(4) maintaining humility, and a sense of calm and perseverance, in the face of seemingly insurmountable difficulties."

"These are rare forms of brilliance, which Judge Sotomayor also has in spades—but that very few on the federal judiciary can claim for themselves..."

Anyway, if Letterman wasn't making fun of possible Supreme Court candidates, you'd wonder why:

"Well, I guess we're all excited that President Bush announced his nomination to the Supreme Court, John Roberts. That's right. Bush searched far and wide before he made the risky choice of a white guy in his 50's. - David Letterman, July 2005

Maybe Letterman has the inside line - or maybe it's Letterman who is calling the shots?

Now, that would be a big surprise... Letterman, the ultimate fixer?

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From the article:"approached him in a span of about two weeks."

My goodness! Justice Souter just announced he was leaving ,less than 6days ago.So these so called people had already contacted Rosen 2weeks prior already knowing Sotomayor was front runner & Souter was leaving.How genius!

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No doubt there has LONG been much speculation in judicial/political circles as to which SCOTUS members will retire soonest and who Obama might pick to replace them.

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Classic Rovian SOP: identify _potential_ Dem candidates ASAP and work up mud ready to sling at them as soon as they throw their hat into the ring. "Define the opposition before they can define themselves." Potential SCOTUS picks are easy targets in this regard because they can't campaign -- they have to wait quietly in hope of nomination.

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Every time I see the "anonymous source", I know that someone is busy spinning a story...so I take it for what it is worth - Nothing. If these individuals think we are stupid...they need to put it on FOX.

I am more amused that the GOP have started bad-mouthing before anyone is even nominated, which makes them look "silly". Maybe they can find a ground swell amongst their party, but most of us will review individuals AFTER they are announced.

Surely the GOP talking heads have something better to do...well obviously not!

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Why isn't anyone calling Letterman out for his disgusting racism? What is this? Ha, ha, funny, a Hispanic woman judge? Bet she's fiery in the sack?

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I called Letterman out on this. I thought the Letterman piece was racist.

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I felt the Letterman skit was a racist slap at the entire Hispanic community. The people before her were Hispanic also. It impugned all Hispanics as quarrelsome, irrational, and violent sub-humans.

Now, you'll excuse me while I go call out Letterman on the network's web site...

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Get somebody on the Court who's actually had to dirty his or her hands in practice.

Not holding the hand of an [insert objectionable/profitable industry here] company, or marching from Law Review to federal clerkship to academia to the federal appellate bench. Somebody who's defended indigents who don't speak English in capital cases. Somebody who's watched his opponents bury his clients in discovery, and then motion after motion, trying to blunt a just claim by exhausting the resources and will of the person making it.

I'm sure Sotomayor's just fine, if you must have yet another federal appellate judge on the court.

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Somebody who's defended indigents who don't speak English in capital cases. Somebody who's watched his opponents bury his clients in discovery, and then motion after motion, trying to blunt a just claim by exhausting the resources and will of the person making it.

Yes! I like that set of requirements! Someone who knows first hand the real-world effects of the technical barriers that prevent the little guy from being able to get true justice.

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Ahem. I seriously hope my anonymity is never compromised in such a way that colleagues in the law know who I am, particularly after what I am about to write.

I have every desire, hop, and dream that we will progress such that the Supreme Court is a little more diverse as far as gender, race, and experience. There needs to be more women on the Court, for starters, given the fact that there are nearly as many women in the law as men. And I fully expect Obama to appoint a woman.

But I certainly hope not Judge Sotomayor.

I have appeared before her. Twice. On two different issues, nearly six years apart. She authored one opinion *the other was authored by another panelist).

Her questions were, if I may be so bold, insipid. She entirely missed the point on the major issue. Her opinion was the sloppiest piece of appellate decision-making I have ever seen. She got the law wrong on at least one matter, and by that I do not mean her judgment was wrong, I mean she cited a case for the wrong standard. Indeed, she got the key holding exactly backwards. Our office contemplated requesting an en banc rehearing, but the matter settled.

When I heard she was near the top of the list, I was disconcerted.

She clearly meets Obama's suggestion of empathy. I think in one of the cases she got the right result, sort of. But she got the law just flat wrong, and as far as intellect and brilliance, she may be a whit sharper than a number of district court judges I have appeared before, but she is, in my humble opinion, and average to slightly above-average appellate jurist.

That simply will not cut it in the Supremes.

I read of this whispering campaign, and for reasons that have nothing to do with her gender or race and everything to do with her intellect my reaction is thus: good.

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I will add, however, that as far as whether Rosen's article is good journalism, it seems a tad bit gossipy and ill-sourced, but journalism is not by wheelhouse.

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Thanks for the insight, Lars.

As both myself, I would love to see an additional woman on the court as well as the first hispanic; but only if they are intellectually up to the challenge. With a right-leaning court, I would like to see an intellectual heavyweight who can hold their own. The last thing our side needs is a latina version of Clarence Thomas.

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I concur.

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I don't get it; here's her CV from Wikipedia:

"She earned her A.B. from Princeton University, summa cum laude, in 1976, where she won the Pyne Prize, the highest general award given to Princeton undergraduates.[5] Sotomayor obtained her J.D. from Yale Law School in 1979, where she was an editor of the Yale Law Journal."

Summa from Princeton, Yale law, Yale Law Journal editor, and she's not the intellectual equals of the sitting Justices? Is this racism (because she's Puerto Rican) sexism, elitism (because she's from Brooklyn) or is this just a huge disinformation campaign?

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Or perhaps she IS temperamental and DOESN'T put in the work to write good opinions? Would not be the first time someone got a lifetime appointment and started to slack.

I know nothing about the woman but her cv, but I think we should not dismiss this "whisper campaign" JUST because she's a Hispanic woman.

I've practiced before smart federal judges who threw their weight around to get out of the courthouse in time for their daily round of golf.

Just because she graduated from Princeton and Yale Law doesn't mean she's a great judge. W graduated from Yale and Harvard and HE was no great thinker.

I expect the White House is listening carefully (and less anonymously) to many people they respect who have practiced in her court.

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CalGal,

Your argument regarding W vs Sotomayor has got to be the most pathetic and ignorant claim on this thread. You're not a lawyer I would hope. You admit to not knowing anything about Sotomayor but her cv. Well then maybe you should try learning before offering your misinformed speculation.

Do you know what SUMMA CUM LAUDE even means?

This means she graduated first in her class at Princeton. This is someone that came from the Bronx housing projects, so just like with Obama, you can't claim her success to be anything related to affirmative action when you graduate at the top of your class. GWB never graduated summa nor cum laude anything. Do you have any idea what it takes to be chosen to be an editor on the Yale Law Review? You have to be considered by faculty to be one of the best of the best in order to just get chosen. Just like the Harvard Law Review, and how Obama was chosen to be an editor before being elected by his peers as president.

The reason for the uproar over the slights to Sotomayor is because its very well known in legal circles of not just prosecutors that might have argued a case against her, but those that have studied her legal opinions, that the superiority of her intellect is unquestionable. I question the motives of anyone, even the few in this thread, that have anonymously chosen to question and deride her intellect.

Anyone that doesn't know anything about her should start by reading the link provided earlier http://prawfsblawg.blogs.com/prawfsblawg/2009/05/on-the-brilliance-of-people-like-judge-sonia-sotomayor-and-barack-obama.html before actively taking part in the whispering campaign which is very obviously politically motivated, as Rosen himself was for his brother in law's sister.

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Do you know what SUMMA CUM LAUDE even means?
.
This means she graduated first in her class at Princeton.

No, it doesn't necessarily mean that, though it would indicate that she graduated among the top students. It's the class valedictorian that is the first ranking student of the class. Different colleges and universities have different requirements for Latin honors. I don't know specifically what the requirements are at Princeton, but at Duke University, summa cum laude means that you are in the top 5% of the class; at Cornell, it means that you have a 4.00 grade point average. Some universities have different requirements for different colleges; some require a thesis or honors work in addition to a minimum GPA for the Latin honors.

At any rate, that was part of her undergraduate degree; it says nothing about her ability as a lawyer, let alone as a judge. The fact that she was an editor of the Yale Law Review is a stronger indication of her abilities as a lawyer, but it still says little about her fitness as a judge. For that, I think you have to look to her written opinions, the judgement of her colleagues on the bench, and the judgement of lawyers who have argued cases in her court. The proof, as they say, is in the pudding. However high someone's academic honors, they say less about ability in the field than does the actual work product.

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The things being said about Sotomayor are no huge secret. Some people would just like to prevent a Harriet Miers. And some people would like a real liberal intellectual leader on the Court--and Sotomayor is certainly not that. You can impugn motives all you want, but the people doing the talking here are on "our side."

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What are you talking about? That is, why do you think that she is not a "liberal intellectual leader"? I've been to law school. They don't affirmative-action the editor in chief (or the number student) at Yale.

She seems plenty smart. What is really driving this? Is she just a pain in the butt to work for or is there something that's not being disclosed? I cannot understand someone who's got a Yale law degree being dumb.

Letterman isn't offensive to me -- although I wonder if he'd make the same joke about some white guy -- but the ridiculous hit job at TNR was petty, weak, hardly defensible.

One more point: I want someone who has practiced before -- to be sure -- but I don't want someone who is not currently an appellate judge. The job is brutal. Long hours, deep thoughts, lots of management, etc. Someone currently doing that kind of work is a good start. Someone who is progressive and currently doing that kind of work is a very good start.

Sotomayor seems like such a person, but maybe I am way off.

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They don't affirmative-action the editor in chief (or the number student) at Yale.

You guys keep inflating the credentials. She was an editor of the Yale Law Review, not the editor-in-chief.

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Yale Law Journal, not Yale Law Review. My mistake.

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Puh-leeze. You're way off base on Letterman. It's a ironic take on hispanic stereotyping. Nothing more, nothing less. He's done it a thousand times before. Way, weirdly off base. Dots don't connect.

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Exactly. Letterman isn't Stewart, the jokes aren't based on political chatter. If the most prominent references to the controversy were from the Corner and a passing reference in a Post article, how many Letterman viewers would know about it? And if you don't know about the controversy, would you take the joke as a personal attack on Sotomayor? Of course not, it's a joke about the stereotypes that are associated with her ethnicity. I can understand being turned off by joking about racial stereotypes, but it's pretty classic Letterman, and not done with any sort of malice.

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"Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her."


WHO are they raving about, then?? WHO would they like to see on the SC?

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#1 She's too old
#2 She's too fat
#3 She's a bitch

Sotomayor wouldn't last more than a decade on the court before she'd die of a heart attack or stroke or some other disease.

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Wow, a real ladies man you are.

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Hate women much?

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This has been a fun read but you know in your heart that the GOPers are going to shoot down the first two Obama noninees. And they will do it with great indignation. The only thing they have to hang their hats on is making Obama look bad and inefectual.
What do you bet that he will feed them a couple sacrifical lambs and then bring out the real nominee? Chess not checkers. And don't hold your breath waiting.

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"Dumb and obnoxious"? That didn't stop Thomas and Scalia!

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Not "intelligent enough-to serve on the Court". Look at some of the justices the Republicans have put on the Court. I don't think they can question "intelligence" after some of their picks.

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Well, not if they are honest, but since when have Republican politicians ever worried about that?

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I would like to see Obama select a hispanic woman, partly because the GOP need to stage an aggressive fight to appear relevant but attacking a hispanic woman will further alienate hispanic voters from the Republican party in addition to women voters. I think the appointment of Sotomayor is the GOP's biggest fear and a whisper campaign to derail the nomination is exactly something Rove would engineer.

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Yeah, sure; the evil Rove used his mind-meld techniques to persuade liberal Democrats to start a whisper campaign against Sotomayor.

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Not getting into this in depth, but when you describe a federsal judge as an appointee of a Republican president and confirmed by a Republican controlled president, you make it appear as if senatorial "courtesy" is not dispositive on these issues. Judge Sotomayor was essentially appointed to the District Court by Senator Moynihan and promoted to the Second Cirvuit with the agreement of the other Senators from the states which make up that Circuit. The president's role in all of this is nominal by custom, even if it appears decisive under a literal reading of the law.

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I have to wonder who these supposed sources were. When a man is aggressive in his career it is admired. For a woman, it is seen as obnoxious and too temperamental. How else could she have gotten to where she is without some real chutzpah? I am glad she is aggressive if she has to deal with the creepy and very obnoxious and aggressive Scalia et al on the court. This whole thing sounds very sexist to me, with a tinge of racism added in, by the right-wing. They always go after character using vague smears rather than focusing on any fact-based content.

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Aside from the racist aspect of calling a Latina "dumb" and "lazy", sounds so paternalistic, not "intellectual" enough. Of course she needs to be bright. But, as long as she meets that criteria, I say we need alot more compassionate logic and a lot less cold logic in government. The absolute fact of the matter is, regardless of who edges out in the IQ test, people from different sub-cultures in America have their own unique intelligences and sensitivities that others, through no fault of their own, simply do not have. For instance, I can study women, hang out with them, etc... but I will still never quite now what life is like for them. It is for this reason that diversity is so important to our government and society. Without, we will continue to have people, often good people, making decisions about things they don't fully comprehend that wind up having unintended harmful consequences.

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Great comment.
The fact that there is only one woman on the SCOTUS is pathetic. Stay tuned for the misogynistic circus to begin, (oops, I mean it already has.)

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I agree that it is important to have diverse viewpoints; I disagree that means that we have to settle for someone with inferior qualifications, and to suggest that the only way to get a woman or a Hispanic on the Court is to do that is insulting.

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She is Catholic, folks! Do we want a full 66% of our Justices on the Supreme Court to be Catholic?? I don't care how great or not great she is.

I don't want 66% of our Justices to be any one powerful religion, period. It's bad enough that more than half of us in this country are women and there is only one woman on the court.

The New York Times finally addressed this subject last week.

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Consider the source these people think Sarah Palin has high intellect

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