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GUNNING FOR SOTOMAYOR II.
Not surprisingly, a chorus of opposition is developing around likely Obama nominee to the Supreme Court, Second Court of Appeals Judge Sonia Sotomayor. As I've discussed elsewhere, Stuart Taylor on the right has tried to paint Sotomayor as an "extremely controversial" extremist. His argument is exactly as serious as you'd expect from someone who rails against "judicial activism" and "partisan judging" and then has fulsome praise for Bush v. Gore. Suffice it to say that if he wants to paint Sotomayor as an extremist, he's going to have to do better than saying that she disagrees with him about affirmative action.
Jeffrey Rosen, meanwhile, attempts to make a case from the left. But again, it's pretty clear that he doesn't have the goods. As Eric Boehlert points out, Rosen's admission (buried near the end) that "I haven’t read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths" pretty much undoes his whole argument. Given this, his random anecdotes from a few clerks aren't exactly convincing evidence. Most of the complaints are trivial, and the stray assertion that the Yale Law grad "isn't that smart" isn't substantiated nearly enough to be taken seriously.
Most dismaying, like Taylor, Rosen places a great deal of emphasis on the unpublished opinion in the New Haven affirmative action case. But he also concedes that "the extent of Sotomayor's involvement in the opinion itself is not publicly known." So, again, the case seems to be that Sotomayor will vote on affirmative action cases ... the way that the Court's moderate liberals already vote on them. This is pretty weak tea.
None of this to say that Sotomayor is necessarily Obama's best choice, or even a very good one. Perhaps a systematic analysis of her opinions would convince me that she isn't at least the latter. But until then, Sotomayor seems like a very solid nominee to me.
--Scott Lemieux
COMMENTS (11)
It seems to me that if there's even a significant minority of people such as former 2nd Circuit clerks and lawyers who've appeared before Sotomayor who feel that she has a questionable temperament and/or isn't one of the 2nd Circuit's leading intellects, that's worth taking seriously. Clearly some people respect Sotomayor a lot, and others not so much. If it's reasonably clear that those who don't think highly of her aren't just grinding ideological axes, then their opinions matter. The ideal SCOTUS nominee would be someone who is liked and respected by as wide a range of people as possible (and would also be reliably liberal, of course).
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Good post. You should stay on this story over the next few days/weeks. I don't know who Obama will pick, but the trashing of Sotomayor, especially in that barrel-scraping Jeff Rosen hit piece, is really starting to become a story of its own. I think some people just see a Puerto Rican woman up there, and say, nah, she's not qualified/smart/etc. Even though she's a very effective judge.
And this Ricci attack on her also really bothers me. Yes, she and the majority of her circuit and probably four justices on the current USSC think New Haven should win the Ricci case. How exactly does that impugn Sotomayor? I don't get it.
Posted by: Yale law | May 5, 2009 4:38 AM
I also would like to know what she said on the Ricci case. Perhaps , if nominated , it will be asked . Maybe she will explain why it warranted an unpublished opinion .
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