Monday, May 04, 2009

The Supreme Court Nomination: Question of the Day

Over at The New Republic, Jeffrey Rosen discusses the potential nomination of U.S. Court of Appeals for the Second Circuit, Sonia Sotomayor, who appears to be one of the frontrunners for Justice David Souter's seat. I know very little, if anything, about her except for her biography. (On a side note, the rhetoric of the frontrunner is a little interesting, as Rosen cites this UPI article, which claims that she is a frontrunner though the evidence that supports the claim is about the role of the Hispanic vote in the 2008 election and not information from the Obama administration. Trial Balloon.)

The most damming passage by Rosen against Sotomayor reads:
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.

This may not be the best article or argument against Sotomayor, especially since it is riddled with anonymous quotes even as the author states that the people with whom he discussed her credentials were not out to grind an axe. However, it does provide an interesting entrance to this conversation.

While Rosen, and Sotomayor's clerks, praise her, the article suggests that she will not be a Justice William Brennan, i.e., she is not the most intellectually powerful and politically liberally motivated. This may mean that she will not be able to build coalitions, define the liberal agenda, or stand up to the movement Conservatives, Chief Justice Roberts, Justice Alito, Justice, Scalia, and Justice Thomas.

This does raise the question: with a seat that will not tilt the balance of the Court and full political capital in public opinion and Congress, should Obama try to secure a safe, pragmatic Justice that will be confirmed but may not be a stellar Justice, a Justice that will "represent" important constituencies (women, Hispanics), or the most ideologically driven Justice?

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