TNR and the Anonymous Smears Against Sonia Sotomayor
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.
Most of the gaping flaws in Rosen's piece have been fully highlighted by others. While most of those criticisms have focused on Rosen's horrendous use of anonymous sources -- one of the most apt reactions to Rosen's piece comes, appropriately enough, in the form of well-earned derision from Wonkette -- I highly recommend this post from Law Professor Darren Hutchinson. As Professor Hutchinson conclusively documents, one of the only issues raised by Rosen that was anything other than anonymous gossip -- a claim that one of Sotomayor's judicial opinions was harshly criticized in an "unusual" footnote by another Second Circuit judge -- is totally false. In fact, it's so obviously false that, as Hutchinson suggests, it could be the by-product only of Rosen's extreme sloth or (ironically enough again) his lack of intellectual capacity. Just read Hutchinson's post for an idea of how vapid, bereft of worth and downright misleading is Rosen's attack on Sotomayor.
I don't really have an opinion about whether Sotomayor would be a good pick for Obama -- I haven't done anywhere near the work to formulate a meaningful judgment about that -- but, in my prior life as a litigator, I had some personal experiences with her. I had at least two, possibly three, cases in which she was the judge -- including a Second Circuit appeal for which she wrote the opinion (reversing the District Court) on behalf of a unanimous panel. At Oral Argument in that case, she was, by far, the most active questioner.
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 be 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 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.
My perception of Sotomayor is almost the exact opposite of the picture painted by Rosen. I had a generally low opinion of the intellect of most judges -- it's one of the things I disliked most about the practice of law -- but I found her to be extremely perceptive, smart, shrewd and intellectually insightful. The image that has been instantaneously created of her as some sort of doltish mediocrity, based on nothing but Rosen's water-cooler chatter, is, at least to me, totally unrecognizable. Of the countless federal judges with whom I had substantive interaction over more than ten years of litigation, I would place her in the top tier when it comes to intellect. My impressions are very much in line with the author of this assessment of Sotomayor, who had much more extensive interaction with her and -- unlike Rosen's chatterers -- has the courage to attach his name to his statements.
It's certainly true that she was very assertive and aggressive -- at times unpleasantly so -- in how she presided over her courtroom. In the first case I had with her, when she was still a District Court judge and I was a second- or third-year lawyer, I committed some sort of substantial procedural mistake (my recollection is hazy of my specific transgression, but I believe papers I submitted violated her rules and necessitated an adjournment of a hearing), and she very harshly excoriated me in a courtroom packed with lawyers from other cases (the scolding lasted roughly five minutes, though it seemed at the time like five hours). I certainly did not enjoy that, and at the time harbored negative sentiments towards her (who wouldn't?) , but that behavior -- for judges -- is the opposite of uncommon.
