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 politica

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.

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.

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 differentNational Reviewwriters
-- 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.

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.

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.

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.

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.

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