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New Republic’s Case Against Sotomayor

From, of all places, The New Republic:

The Case Against Sotomayor

Indictments of Obama’s front-runner to replace Souter.

Jeffrey Rosen,  The New Republic 

Published: Monday, May 04, 2009

A judge on the U.S. Court of Appeals for the Second Circuit, Sonia Sotomayor’s biography is so compelling that many view her as the presumptive front-runner for Obama’s first Supreme Court appointment. She grew up in the South Bronx, the daughter of Puerto Rican parents. Her father, a manual laborer who never attended high school, died a year after she was diagnosed with diabetes at the age of eight. She was raised by her mother, a nurse, and went to Princeton and then Yale Law School. She worked as a New York assistant district attorney and commercial litigator before Senator Daniel Patrick Moynihan recommended her as a district court nominee to the first President Bush. She would be the first Hispanic Supreme Court justice, if you don’t count Benjamin Cardozo. (She went to Catholic schools and would also be the sixth Catholic justice on the current Supreme Court if she is, in fact, Catholic, which isn’t clear from her official biography.) And she has powerful supporters: Last month, the two senators from New York wrote to President Obama in a burst of demographic enthusiasm, urging him to appoint Sotomayor or Ken Salazar.

Sotomayor’s former clerks sing her praises as a demanding but thoughtful boss whose personal experiences have given her a commitment to legal fairness. "She is a rule-bound pragmatist–very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background," says one former clerk. "She grew up in a situation of disadvantage, and was able, by virtue of the system operating in such a fair way, to accomplish what she did. I think she sees the law as an instrument that can accomplish the same thing for other people, a system that, if administered fairly, can give everyone the fair break they deserve, regardless of who they are."

Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family–working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier of a Harry Potter movie.

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.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.)

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.

Jeffrey Rosen is the legal affairs editor at The New Republic.

Of course this is being characterized as a smear and even stereotyping by the rest of the left.

But when The New Republic has doubts about a lefty judge, one really has to wonder.

This article was posted by Steve on Tuesday, May 26th, 2009. Comments are currently closed.

36 Responses to “New Republic’s Case Against Sotomayor”

  1. curvyred says:

    “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.” – boy does that sound familiar.

  2. curvyred says:

    Sorry double post.

    • JohnMG says:

      …..”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?” …..

      This from a female clerk for another justice. My question is, just how much weight should be given to the opinion of one of the clerks for another judge who only worked for Sotomayor briefly? And what’s with the ‘clear liberal alternative’ crap? How about a clear Constitutionalist? We have enough muddle-headed legislators in the legislature without bastardizing the judicial further than has already been done by allowing legislation from the bench.

      Here is a clear opportunity for Republicans to differentiate themselves from the current cabal. She should go down in flames, but I don’t care if it takes three years to get it done. The last thing our government needs is another weepy-eyed, liberal, judicial activist with a lifetime appointment.

    • Petronius says:

      JohnMG: “Here is a clear opportunity for Republicans to differentiate themselves from the current cabal.”

      Excellent point. We shall see if the Senate Republicans can––for once––unite to make a principled stand. Memo to those Republicans who knuckle under for this appointment: We will be taking names.

    • Colonel1961 says:

      This one statement, regardless of circumstance, context, or other apologista, is grotesque:

      ‘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.’

      I guess white males can’t have ‘richness of experience’. Ugh. She is blatantly disqualified for myriad bigotry. And, by the way, she can go rot in Hell for insulting my race and gender…

    • Howard Roark says:

      Right on, Colonel.

      My question is, if being Latina makes her have more “common touch”, then by implication, she won’t have that “common touch” when one of my Appalachian-bred, tobacco-spittin’, mountain brothers comes before her bench in some case to be tried, correct?

    • Colonel1961 says:

      Correct, Howard. I guess that’s what all this ’empathy’ crap is about…

  3. U NO HOO says:

    “Sotomayor is divorced…”

    Therefore, we can reasonably conclude that she makes bad decisions and/or cannot get along well with others.

    • Right of the People says:

      What I want to know is who was the fool that married her in the first place? UGH, she gives fugly a new meaning.

    • proreason says:

      There are plenty of young knock-out liberal women…that’s what Hollywood is about, after all.

      But is there even a single attractive liberal woman once you get beyond the obamabots? I guess maureen dowd is ok, but other than her and the “la-la obama” news-babes, who are all lightweights, it seems to me that all of the good lookers are conservatives.

      My theory is that good-looking smart women are hounded out of the marxist party because they aren’t lesbians and they piss-off the hags who somehow maneuvered themselves into positions of power. Maybe women interested in politics have to make a decision around the age of 30….give in to drawn-face angry-mouth beady-eyed carping, or become a republican.

      And then there is the odd woman or two who decides to become Keith Uberdumkoff.

    • Liberals Demise says:

      pro ……… you forgot one important constant for becoming a angry, ugly, liberal beach ……………… noticeable facial hair!!

  4. proreason says:

    “not that smart and kind of a bully on the bench……
    an inflated opinion of herself……
    her questions aren’t penetrating and don’t get to the heart of the issue…..
    sometimes miss(s) the forest for the trees……
    rankled her colleagues by sending long memos that didn’t …focus(ing) on the core analytical issue………
    she’s not the brainiest of people”

    Obamy nominated himself

  5. Enthalpy says:

    Souter was appointed by Bush I, so there is hope that this leftist might do an about face. However, I’ve seen her say that part of her job description is creating law. Evidently, interpretation of the inspired ideas and work of some of the most talented people who have ever lived is inadequate without her own, insightful input. Humility raises its ugly head once again.

    • proreason says:

      Souter had carefully hidden his liberalism (perhaps because he is queer and being extremely liberal would have been a clue), and he is a weak personality.

      This woman is “no shrinking violet”.

      Like The Moron, she has been handed every role on a silver platter, and people like that quickly reach the conclusion that it is their own eminence that opens all of the doors rather than the color of their skin.

  6. specialed says:

    So if she is hispanic (Latina??) I assume she has a Catholic background.

    And if she is divorced, I assume she is going to hell. That is apparently party line for Catholic divorces in the Latin world.

    And she should be Pro-Life, right?

    Or is she not a typical latin background?

    • Helena says:

      I was thinking the same thing. Her bio on Wikipedia lists her religion as Roman Catholic. Is there not some little cause for concern when a Roman Catholic who was married for 7 or 8 years gets divorced? But doesn’t leave the church? Does she still take communion? Her religion is her own business, of course, but if she still professes to be a Roman Catholic, it sort of shows she has no respect for their rules either. Why should we think she has any respect for the laws of the land?

    • AcrobaticTenement says:

      This is the stupidest thing I have ever heard in my life. You are honestly attacking her qualifications as a judge based on the fact that she is divorced? You think that because she chose not to continue on in an unhappy marriage she won’t follow “the laws of the land”?? This is so asinine it makes my blood boil. What is wrong with you?

      If you have a legitimate case to make against her, then I am all ears. But, please.. She doesn’t follow the rules of her religion (newsflash: hardly any Catholics obey the rules about divorce and contraception) so she isn’t qualified to read the Constitution? I know everyone holds Ann Coulter up on a pedestal here.. She was engaged on more than one occasion…She certainly isn’t a virgin! Why are her opinions not immediately invalidated because she broke the rules of her religion and made bad decisions in her personal life?

    • proreason says:

      “This is the stupidest thing I have ever heard in my life”

      Maybe this site is too subtle for you Acrobat.

      specialed was pointing out the hypocricy of picking a SCOTUS for her democraphics ……and then the nominee just happens to be a typical elitist uber-liberal rather than a true example of the group she is supposed to “represent”. In this case, are you aware that Hispanics are almost all Catholic, pro-life, and against divorce, since abortion and divorce are mortal sins for Catholics? Yet this “hispanic” is divorced, and specialed smartly suggests that the lassie is probably pro-life as well. How so you ask? Because specialed knows the elitist ultra-libs are as consistent in their virulent pro-abortion views as they are in their disregard for marriage vows.

      Koz may be more to your liking. It is filled with transparent hatred. You can tell who they hate from the color of the froth.

      btw, Anne Coulter is one of the strongest and most articulate pro-life advocates in the country. Nobody thinks she is a saint, but holding a stong and consistent position on one of the most fundamental issues of all gives her a ton of credibility with us, just in case she has fallen from grace elsewhere in her life a time or two.

    • dulcimergrl says:

      Abortion would be considered a mortal sin in the Catholic Church because it is murder, but divorce is not a mortal sin. It is not encouraged or approved of, but divorce is not a sin. A sacramental marriage is for life, so getting divorced and remarried is where the church has the problem.

    • proreason says:

      How are you feeling dulcimergirl? Haven’t heard from you lately.

      I’m not a theologian, but at least some consider divorce a mortal sin:

      “The Sixth Commandment, “You shall not commit adultery”

      Adultery—Adultery is marital infidelity. A married person who has sexual relations with anyone but their lawful spouse, even transient sexual relations, commits adultery (CCC 2380).

      Divorce—The grave sin of divorce condemns those who divorce and remarry (Matthew 5:32) and those who divorce in the civil sense (except by grave dispensation). Hence divorce between two baptized Christians is a mortal sin (CCC 2384). ”


      And then there is this from the 2nd version of the Catholic Catechism which calls divorce “a grave offense” (note: that section doesn’t have the term “mortal sin”:

      “2384 Divorce is a grave offense against the natural law. It claims to break the contract, to which the spouses freely consented, to live with each other till death. Divorce does injury to the covenant of salvation, of which sacramental marriage is the sign. Contracting a new union, even if it is recognized by civil law, adds to the gravity of the rupture: the remarried spouse is then in a situation of public and permanent adultery: ”


      Perhaps divorce without re-marriage and without sexual relations with other parties isn’t considered a “grave offsense”

    • dulcimergrl says:

      Pro, I’m doing okay. Still paying the bills and still have a job.

      I, too, am not a theologian, but I have personal experience with divorce. I was able to get an annulment through the church and married my 2nd husband in the church. We have been married for 22 years now.

      Your last statement “Perhaps divorce without re-marriage and without sexual relations with other parties isn’t considered a ‘grave offense’ ” is, I believe, how the church views the matter.

    • jobeth says:

      Welcome back Dulimergirl, You’ve been missed! Hope you’re doing well.

  7. NotStuckOnStupid says:

    I can hardly wait for Ann Coulter’s take! :)

    • Colonel1961 says:

      Agreed: Miss Coulter’s Thursday web offerings pack more jolt than a cocaine enema. This one, should be a Duesie!

  8. Anonymoose says:

    “She’s a fine Second Circuit judge–maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?”

    It kind of goes without saying if she was a Republican we’d be hearing about this all over the media. But more to the point, this is the Supreme Court, the nominees are supposed to be the best and the brightest. If not, then they might as well admit the Supremes are just appointed political hacks.

  9. Colonel1961 says:

    No kiddin’, could she be any uglier? RBG wasn’t that homely! Heck, even Bork was better looking, for goodness’ sake! lol

    Maybe there’s something to this physiognomy stuff after all…

  10. 12 Gauge Rage says:

    Does anyone have a link where I can read the full bio on Sotomayor? I’d like to know what we’re up against here.

  11. Howard Roark says:

    Is it possible that this is all part of the plan of attack from Barry’s camp–the ‘Harriet Myers strategy’? That is, to throw out a “loser” in the first one or two pitches, knowing they’re going to be batted down immediately by the oppostion, while attracting just enough Democrats to join in because they’re nearing election time?

    Either way, Barry wins. If she’s not confirmned, TCO uses it to further smear the Conservatives as woefully out of touch, and “misogynist, elitist, and bigoted”. If she wins, he’s got himself a soldier for life in the highest court in the land.

    Has anyone noticed how opposition is being framed from the media talking heads? Twice, today (Fox news/Charlie Rose), I’ve heard the pro-Sotomayor question as being one of these 2 choices:
    A) Life in 1789 being inflicted on us now (anti-Solomayor solution)
    B) The Legal parameters that allow for a Third World perspective to guide our way through this living Constitution, which recognizes the many evolutions of change, spirit, and industry since 1789, to include an Amendment to end slavery, give women the vote, and love all things multicultural.

    It is, of course, a strawman argument. Their frame of the oppostion to Sotomayor stemming from an [originalist] argument that supposedly sees the Constitution as having remained static since 1789 is a misrepresentation of what it means to be originalist.

  12. canary says:

    And she wrote a biography about herself. Doesn’t like white high skilled Fire-Workers? Doesn’t like white male Judges Proud to be Latino, but not proud to be American? Another sob story of growing up poor, but getting all that
    free education from America ? Poor thing.

    Well, Obambies comment about the 14th amendment, and this pick, may imply she is to rewrite the citizen and naturalization laws for his free borders amnesty.

    • catie says:

      Yeah, according to Obama and this individual no one can make it in America, especially when a Republican is in charge. Yet as Rush pointed out yesterday to millions but what I have thought all along, these clowns got to the finest universities and law schools in this country while whining that “you can’t succeed in America if you’re a minority”. This annoys me to no end. When I decided that I wanted to go to law school I applied at Northwestern-where my brother went in the late 80’s. I had a high LSAT score but did not get in. A person I worked with also decided to go to law school the following year and also applied to Northwestern with a crummy LSAT score but she got in. She was Hispanic-I was not. This was in 1995 and 96. I had to go into the part-time program at Regent because I had to work while going to school. I left after my first year to get married and with a 20K loan in tow. But Melinda went for free and she had crappy undergraduate grades as well. And they continue to tell us that it’s all whitey’s fault.
      Yeah, she’s not only ugly on the outside but she is on the inside as well.

  13. canary says:

    The Oath: without respect to persons, and do equal right to the poor and to the rich…impartially

    US Federal Code of Regulations Titel 28 Part I Chapter 21 .453

    Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.”


    I haven’t been able to find her religion, but even the muslim’s believe in God, it’s just if a muslim breaks a vow to God, their tongue is cut out. [: o

    • canary says:

      She lived in the Bronx projects, and her mother was a nurse? The mother was an immigrant.

      Ya know, Michello was going into her story of her first date with Obama where he took her to a museum, and she fell in love. (like he’s such an intellect)

      Yet, Michello’s Wikipedia site, says it was at Wesley Snipes movie, and that her being only black woman at law firm, her co-workers say there quite a few. After all civil rights?

      Wesly Snipes also said Obama told him, their first date was seeing his movie “Do the Right Thing”

      Course Snipes sure got out of paying millions of taxes.
      says Obama told him, their first date was seeing his movie “Do the Right Thing”, and on Micheelo’s site on Wikipedia, her co-workers say she was dishonest about her being only black woman. That there were several at the law form.

    • Liberals Demise says:

      MO a liar? I can’t believe you just called the most wonderful, caring, giving, smartest, devoted, self centered biatch for a First Lady(?) a liar.
      If you’re not careful she’ll take off her lobster bib and wipe her buttery fingers in your hair!!

    • canary says:

      Well, Obomie credits Michello the most. Moonlighting on the clock. Obomie says politics today is a business and not a mission, something he proved. But, he doesn’t give Republicans acknowledgement for providing him a free office to write, and free private school for little ones. I get the Kansas and Texas stories of racism his grandparents spoke of while living there, but not Oklahoma lumped in the three, unless that is connected to his grandmother’s Cherokee blood that comes in handy for free stuff. Course, his California education and his drug fog, left him with empty pockets when he arrived in NYC and slept in an alley, to wake up and see an ugly whitie staring down on him. But, his muslim friend took him in. White men all have fat sweaty necks like his Grandpa’s.
      Obombio describes Nancy Pelosi with perverse liberalism and greedy trail lawyers compared on the other hand to conservatives as religious zealots and oil greedy.

      Didn’t see any work, mow a lawn, fast food, like youth making it through school. Did scrub the tub before a relative from Kenyan. A family that’s flown more than most in the Air Force pilot, I’d say. Private planes as Senator. And
      when the others on the Committee visit to Iraq,
      the only one that left after a day and half, (couldn’t find anyone to side with him on Iraq) so, flew around the surrounding poor countries and listened to the Palenstines spew venom against Isreal. Talking about an oil hog!!!

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