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Jeffrey Rosen, 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.
Federal judges have one of the most accountability-free jobs on the planet, and it very frequently breeds pompous, domineering and even abusive behavior. They have life tenure. Except in the most extreme cases of wrongdoing, they can never be and never are fired. They can't even be demoted or have their responsibilities diminished. They rule with virtually limitless reign over their little fiefdoms. The absolute worst that can happen to them is that their decisions are appealed and reversed, but in the federal court system, where (with some very narrow exceptions) decisions can be appealed only once the case is over, reversals happen quite rarely even for the worst judges, and when it does happen, there are no personal or professional repercussions.
Aggressive, intimidating and even bullying behavior by judges is about as common in the judicial system as witnesses and lawyers who fail to tell the complete truth. For many judges -- who earn less, often much less, than the lawyers who practice before them -- the ability to engage in such dictatorial behavior seems to be one of the few real perks of the job. Add to that the fact that many have overloaded dockets; shoddy lawyering is quite common; controlling one's courtroom is an important attribute for a judge; and one's patience wears thin after too many years at any job, and judicial behavior like that is so pervasive that it's just a fact of life in the practice of law.
For that reason, many of the judges who are most respected are perceived that way despite, or even because of, their aggressive, controlling and tyrannical behavior. That's what makes the complaints about Sotomayor's so-called "temperament" so baffling. Even amidst Rosen's orgy of anonymous pot shots, there is no incident that stands out in terms of extreme or particularly abusive conduct. Instead, the grievances are of the generalized type that her personality is grating and shrill because of how "domineering" she is.
I'm generally more resistant than many to reach conclusions of this sort, but it's very hard in this case to avoid the impression that behavior that seems "authoritative" and "appropriate" when coming from familiar authority figures (such as all the white males on the bench Stuart Taylor hails as "brilliant") is immediately transformed into "domineering" and "egotistical" when coming from a woman who still speaks with a mild though discernible Bronx/Puerto Rican accent. The anonymous personality smears passed on by Rosen seem to say far more about Rosen's sources (and Rosen) than about Sotomayor. Salon's Rebecca Traister and The American Prospect's Adam Serwer both expertly highlight what are, in this case, the overt gender and ethnic overtones to the attacks on her.
What this sorry episode reveals, yet again, is just how poisonous and destructive is the reckless use of anonymous gossip-mongers masquerading as "journalism." My own impressions of Sotomayor should be of very limited value because of how confined it is to a few cases and because there is too much information missing to assess the worth of my views: How complicated were the cases I had before her? Did her rulings advance or impede my positions? How closely aligned are her judicial rulings with my political ideology? Was her conduct in those cases representative of what she normally does? What motives might I have to say good or bad things about her? But at least I'm attaching my name to my perceptions and providing as much information as I can about the basis for those views.
By contrast, because they're hiding behind the shield of anonymity Rosen gave them, virtually nothing is known about the gossip-mongers whose chatter was passed along by The New Republic. Rosen claims that "they're not motivated by sour grapes or by ideological disagreement--they'd like the most intellectually powerful and politically effective liberal justice possible," but there's no way for anyone to assess that. The word "liberal" can mean something completely different to a person like Rosen, writing in a magazine whose self-described mission is to re-create the Democratic Party in Joe Lieberman's image, than it means to many, perhaps most, people. None of Rosen's quotes is even marginally more valuable than this.
Beyond all of that, there are enough glaring journalistic breaches in Rosen's analysis -- as well as in his prior behavior in leading the crusade on behalf of John Roberts and his preemptive worry that diversity will play a role in Obama's pick -- to call into serious question how honestly and accurately he passed along these disparagements of Sotomayor's intellect and personality. But because it's all anonymous, there's no way to examine it, impose accountability on those who are opining, or to formulate any assessments about its reliability. Nonetheless, Rosen's gossip has, in many places, already solidified as conventional wisdom about Sotomayor: if Obama selects her, it will mean that he has subordinated merit and intellect to gender and ethnic diversity. Sotomayor's decades of achievement in the face of overwhelming obstacles just gets dismissed with a few slothful, totally irresponsible smears from Rosen and his invisible friends. But that's how "journalism" so often works -- people are allowed to remain hidden while their views and assertions are uncritically amplified in the loudest venues and bestowed with an authoritative veneer that they absolutely do not merit.