Posted by Randy Barnett:
Revisiting Rosen:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247776726
On [1]Contentions, Jenifer Rubin recalls Jeff Rosen's preemptive
warnings about Judge Sotomayor:
After two days of Sotomayor testimony I thought of [2]Jeffrey
Rosen�s piece on Sotomayor back in May (before he had to backpedal
and support her so as not to embarrass the �team�). I don�t think
much of his temperament criticism, but his analysis of her legal
and intellectual capabilities seems exactly on the money:
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. �
[. . .]
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ruled against the firefighters in a perfunctory unpublished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.)
Has she said anything to dispel these concerns? Whether examining
her verbal skills, her command of the law or her intellectual
acuity, I come away thinking she is one of the least impressive
Supreme Court nominees to come along in recent memory. Judge Robert
Bork was obviously not everyone�s ideal judge, but the man�s
intellectual prowess was undeniable and he refused to lie about his
views. Justice Ruth Bader Ginsburg was frankly charming and
sharp-witted in her testimony and could march the senators through
the evolution of a number of strains of jurisprudence.
Then there is this passage:
Rosen was trying to warn his liberal compatriots that they could do
�better� than Sotomayor. He was right and should get some credit
for his effort. Imagine if Diane Wood or Kathleen Sullivan, both
liberal in philosophy but undeniably impressive, had been up there
over the last couple of days. I suspect that conservatives would
have been staring at their shoes, struggling for reasons to say
�no� and grudgingly acknowledging that the nominee was going to add
something to the Court beyond her gender.
When Rosen published his critique, I knew very little about Sotomayor.
After forcing myself to watch much of the hearings, I wonder if those
who criticized him then are having any second thoughts today.
References
1. http://www.commentarymagazine.com/blogs/index.php/rubin/73431
2.
http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085
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