Media, others dredge up discredited smear piece in reporting on Sotomayor nomination

In their reporting of President Obama's nomination of 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor to the Supreme Court, numerous media figures have cited smears of Sotomayor's intellect and temperament reported by legal affairs editor Jeffrey Rosen in a controversial May 4 New Republic article. Rosen's article relied heavily on anonymous attacks on Sotomayor, as well as outright distortions. As Media Matters for America has documented, several of Rosen's sources were unnamed "former law clerks for other judges on the Second Circuit"; according to an American University law professor, Rosen's citation of law clerks is "extremely problematic." Further, as Media Matters senior fellow Jamison Foser noted, Rosen "admitted he had neither read enough of her opinions nor spoken to enough of her supporters to form a fair assessment of her, and cropped and twisted a quote from a colleague who praised Sotomayor's intellect in order to make it appear that he had criticized it."

During the May 26 edition of MSNBC's Hardball, after MSNBC political analyst Pat Buchanan cited Rosen's piece, Salon.com editor-in-chief Joan Walsh responded: "The worst thing about that article was not the anonymous sourcing, it was that Jeffrey actually admitted himself, 'I had not read enough of her decisions to have a strong opinion one way or another on her qualifications.' Then what the hell are you doing writing in The New Republic or anywhere, for that matter? It was a terrible article. He's going to need to dial it back. He will be ashamed of it for the rest of his life."

In a May 26 post to The New Republic's blog The Plank, Rosen stated that Sotomayor "should be confirmed," adding: "Conservatives are already citing my initial piece on Sotomayor as a basis for opposing her. This willfully misreads both my piece and the follow-up response. My concern was that she might not make the most effective liberal voice on the Court -- not that she didn't have the potential to be a fine justice."

Despite Rosen's demonstrated reliance on anonymous sources and misrepresentation of source material -- as well as his own admission in the article that he hadn't "read enough of Sotomayor's opinions to have a confident sense of them" or "talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths" -- numerous media figures returned to the discredited smear piece following Sotomayor's nomination:

• During the May 26 broadcast of NPR's Morning Edition, host Steve Inskeep said, "I'm reading this article by Jeffrey Rosen of The New Republic who quotes a couple of -- anonymously -- a couple of courts [sic] who had served around Judge Sotomayor. One was not complimentary and said she's kind of a bully, not that bright." He later added, "And to be fair to Jeffrey Rosen's article, we'll say that another former clerk or person who clerked around her said that she had similar qualities but was very tough and self-confident." During the same broadcast, Inskeep hosted Rosen. During the interview, Rosen said that "there have been questions, some of which I reported, about Sotomayor's temperament." At no point during the interview did Inskeep note the criticism Rosen received for his article.

• On the May 26 edition of MSNBC's Hardball, Buchanan repeated numerous allegations, which he sourced to Rosen's article, among them, the charge that Sotomayor is a "bully" and "not that intelligent." In addition to Walsh's subsequent criticism of Rosen, host Chris Matthews said that Rosen should "re-examine the facts" and "get some on-the-record quotes."

• On the May 26 edition of CNBC's The Call, host Larry Kudlow referenced Rosen's article during his panel, saying of Sotomayor, "She is known as a judicial activist, making policy from the bench. We have this incriminating tape on her. She is a great one for empathy, quote unquote, and you know what? In the liberal New Republic, I'm sure you saw it, Jeffrey Rosen criticizes her, talking to law clerks and whatnot -- that she's not penetrating, she's not well prepared, and her opinions are sloppy. What do you think?"

• During the May 26 edition of CNN's The Situation Room, host Wolf Blitzer said to White House senior adviser David Axelrod, "There was a tough article that Jeffrey Rosen, who's a law professor at George Washington University, wrote in The New Republic not that long ago. Among other things, he quoted people who worked with her on the courts as saying this: 'They express 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.' " Axelrod responded, "I saw the article, yes. But I don't -- I think it flies in the face of the evidence and the experience."

• During the May 26 edition of Fox News' America's Newsroom, Supreme Court reporter Shannon Bream stated, "There was a piece in The New Republic a couple of weeks ago that cited a lot of unnamed sources, and it was brutal to Judge Sotomayor. I mean, it talked about the fact that there were some people who believed that she wasn't as brilliant as she had been made out to be, that she was a bit of a bully in the way that she treated people. So she has had some negative publicity thus far." Co-host Bill Hemmer went on to say that Sotomayor "is reportedly domineering in oral arguments. She can get bogged down in marginal details, failing to see the forest for the trees."

• During the May 26 broadcast of his nationally syndicated radio show, Glenn Beck said of Sotomayor, "I have heard that she is -- in the 2nd Court of Appeals, that she is almost a bully at times, that she has the image of not being that intellectually bright. I don't know if this is true or not. This is one -- a piece of analysis that I heard today. She's not that intellectually bright, and she's almost a bully; she just loves to hear herself talk." His guest, Cato Institute vice president for legal affairs Roger Pilon, replied that this view "is widely held" and went on to cite Rosen's article.

• On May 26, Fox Nation -- Fox News' purportedly bias-free website -- linked to Rosen's piece with the headline, "Liberals Make Case Against Sotomayor":

• In a May 26 post to The Wall Street Journal's Law Blog, Ashby Jones reported that Sotomayor "has critics, according to Rosen, who says that former prosecutors and former clerks of other Second Circuit judges voiced reservations about Sotomayor, including that she can be domineering in oral arguments and that she can get bogged down in marginal details, failing to see the forest for the trees."

• During the 10 a.m. hour of the May 27 edition of MSNBC Live, Curt Levey, executive director of the conservative group Committee for Justice, said, "I can't speak for the GOP, but many liberals are on record as saying that she's not an intellectual heavyweight, that she's had temperament problems." Anchor Monica Novotny challenged, "[W]e've heard from anonymous sources, some clerks, former clerks." Levey responded, "[F]rom two very reputable liberal law professors, Jeffrey Rosen and Jonathan Turley on MSNBC yesterday, that she's not a heavyweight, that you can tell that just by reading her opinions. And that's the only reason I and other people are suggesting she was picked because of her race and because of her gender. That's not to say she's not a smart woman, but the -- it seems to be a consensus that she's not as much of an intellectual heavyweight as several of the other people on the short list." Levey later added, "Again, Jeffrey Rosen, if you read his piece in The New Republic -- and again, he's quite liberal -- people who work with her say she has temperament problems."

• In a May 27 Washington Examiner column, senior political analyst Michael Barone wrote: "What would a Justice Sotomayor mean judicially? In a widely noted New Republic article, liberal analyst Jeffrey Rosen quoted former 2nd Circuit law clerks and observers as having reservations. One anonymous source said she was 'not that smart and kind of a bully on the bench.' If that's a fair assessment, Justice Sotomayor might not fit in particularly well in a court whose current justices, by all accounts I've heard, have excellent personal relations with and respect for each other despite their sometimes sharp disagreements."

• In May 27 CNN.com piece, Cato Institute fellow Ilya Shapiro argued, "In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit." Shapiro explained, "Sotomayor has a mixed reputation among lawyers who have practiced before her, some questioning her abilities as a judicial craftsman, others her erratic temperament, according to a piece by Jeffrey Rosen in The New Republic, which itself has come in for criticism." He continued, "Such anecdotal criticism is to be taken with a grain of salt -- while Justice Antonin Scalia's bench-side manner is more vinegar than honey, even his detractors recognize his brilliance -- but it does need to be investigated."

• During the 9 a.m. hour of the May 27 edition of MSNBC Live, host Norah O'Donnell pressed Buchanan to defend "your argument yesterday was that she was legally lazy and not that bright." Buchanan began to respond, "Jeff Rosen of The New Republic -- read him. He's the one that questioned her -- her intelligence and ability." O'Donnell cut him off, saying, "[A]ll anonymous quotations from former clerks. No one on the record, Pat."

From the 10 a.m. ET hour of the May 27 edition of MSNBC Live:

NOVOTNY: You're focusing on her gender and her race. A lot of voters will be offended by that. Do you really want to go down that road, and does the GOP really want to go down that road?

LEVEY: Well, I can't speak for the GOP, but many liberals are on record as saying that she's not an intellectual heavyweight, that she's had temperament problems in her current --

NOVOTNY: We've heard -- we've heard from a lot of anonymous -- we've heard from anonymous sources, some clerks, former clerks --

LEVEY: Well, not from anonymous -- from Jeff, two -- from two very reputable liberal law professors, Jeffrey Rosen and Jonathan Turley on MSNBC yesterday, that she's not a heavyweight, that you can tell that just by reading her opinions. And that's the only reason that I and other people are suggesting she was picked because of her race and because of her gender. That's not to say she's not a smart woman, but the -- it seems to be a consensus that she's not as much of an intellectual heavyweight as several of the other people on the short list.

NOVOTNY: Well, I don't know if three makes a consensus -- you're naming yourself and Jeffrey Rosen, and he's got -- he's the one with the anonymous sources in the column -- Jonathan Turley. You're comparing Obama's pick of Sotomayor to Bush's pick of Harriet Miers. We get the implication there that she's not up to the job intellectually obviously, as you've said. This is a woman, though, who graduated with honors from Princeton, she was recognized at Yale Law. Is it really -- is it really the road that you want to go down here?

LEVEY: I graduated with honors from Harvard Law School. I don't know that I'm qualified to be on the U.S. Supreme Court. There's a lot more to it than just doing well in school.

NOVOTNY: But certainly there's more to her story than that. You see more to her story, more depth there than simply that.

LEVEY: Well, you know, same was true -- same was true of Miguel Estrada when he was nominated by President Bush. He came to this country as a teenager speaking no English, and yet Democrats and liberal groups filibustered him, did everything possible to stop him because they were afraid he would be the first Hispanic on the Supreme Court. So again, just having a compelling story does not apparently make you qualified for being a Supreme Court justice.

NOVOTNY: Curt, the reaction so far from Senate Republicans has not been nearly as strong as what we've heard from the base. It seems like there's a real disconnect there. Is there a split?

LEVEY: No, nor should there be. You know, the role of the outside groups is to point out problems. The role of senators, both Republican and Democratic, should be to keep an open mind. I would be disappointed if either Republicans or Democrats had reached a conclusion after 24 hours.

NOVOTNY: You'd be disappointed if Senate Republicans were coming out stronger against Sonia Sotomayor, if they were agreeing with you only?

LEVEY: Again, neither -- I would not want Democrats committing to voting for her or Republicans committing to vote against her. We need a careful review of her record and of some of the issues I mentioned -- her temperament, her judgment, her intellect.

NOVOTNY: Her temperament?

LEVEY: And then senators should make up their mind. Again, Jeffrey Rosen, if you read his piece in The New Republic -- and again, he's quite liberal -- people who work with her say she has temperament problems. She's also made some very --

NOVOTNY: Yes, the anonymous sources --

LEVEY: -- intemperate remarks.

NOVOTNY: We've all -- we've definitely heard that cliché, though, you'll concede to that, the cliché about successful women having temperament problems. Usually it's worded more strongly -- there's a "b-word" that goes with that -- but we've heard that before.

LEVEY: Well, nobody said that about many of the other women on the short list.

NOVOTNY: All right, Curt Levey, great to talk to you. We appreciate your time today, Curt. Thank you.

LEVEY: Thank you.

From the 9 a.m. ET hour of the May 27 edition of MSNBC Live:

O'DONNELL: Pat, your argument yesterday was that she was legally lazy and not that bright. Did you graduate second in your class from Princeton summa cum laude? I mean, come on.

BUCHANAN: No, but I did -- I did -- listen, well, I don't need to go into my academic record with you; we can go into that later, but I will say this. She made an incredibly boneheaded statement when she said appellate court judges -- that's where we make policy. Now, if she stands by that, she should be rejected. It was a stupid statement, and she's going to have to withdraw it. It was not mean to question her intelligence --

BILL PRESS (radio host and MSNBC contributor): Oh, come on, Pat, wait. Come on, Pat.

O'DONNELL: Bill, go ahead.

BUCHANAN: Jeff Rosen of The New Republic -- read him.

PRESS: Hey, wait, Pat -- Pat --

BUCHANAN: He's the one that questioned her -- her intelligence and ability.

PRESS: Pat -- whoa, whoa, whoa --

O'DONNELL: All anonymous -- all anonymous quotations from former clerks. No one on the record, Pat. Bill, get in there.

[crosstalk]

BUCHANAN: You can run those down, Norah.

PRESS: Norah, let me just -- let me just explain what happened here, OK? She was giving a class -- she was in front of, rather, some students who were applying to be clerks on the court, and she was with another judge and they were asked the difference between the circuit court and the appellate court. And she said to them --

BUCHANAN: That's where we make policy.

PRESS: She laughed about it. And she said, you know, with the circuit court, you're just dealing with kind of procedural stuff. If you get into the appellate court, you're dealing with pretty meaty, some policy issues. And guess what? You are. But again, the question about being an activist judge --

BUCHANAN: Bill, Bill --

PRESS: -- Pat, if I may finish -- I didn't interrupt you -- is where do you look at her record and say that she actually tried to legislate or make law? Nobody has done that; nobody can do that. She is eminently qualified to be on the bench, more legal experience than anybody now sitting on the Supreme Court has, and that's what you won't talk about. That's why she's there.

O'DONNELL: Pat, you are invited back in my 3 o'clock hour --

BUCHANAN: Look, she's certainly -- will make policy on --

O'DONNELL:-- if you come up with that case that shows she's been an activist judge. OK?

BUCHANAN: Sure.

PRESS: Yeah. Thank you, Norah.

From the May 26 broadcast of NPR's Morning Edition:

INSKEEP: Judge Calabresi, as we wait for the president's announcement, I want to ask about one other thing, and that is that any Supreme Court justice, of course, is one of nine, and any ruling or majority that's put together is often a negotiation, and so your personality, your style, can be significant. And I'm reading this article by Jeffrey Rosen of The New Republic who quotes a couple of -- anonymously -- a couple of courts who had served around Judge Sotomayor. One was not complimentary and said she's kind of a bully, not that bright. The other -- another seemed to think --

GUIDO CALABRESI (2nd U.S. Circuit Court of Appeals judge): Let me speak to that directly.

INSKEEP: OK.

CALABRESI: First, she has changed my mind any number of times. I hope I have changed her mind, because she is strong and good. When -- some people, when she first came on, asked -- said some things like that, I kept track. Her way of dealing with other people is exactly the same as male judges do. The fact that she is a woman and does that meant that some people thought, oh, women shouldn't act that way. She is a totally fair, good negotiator, good talker with other people, but she's no different from anybody else.

INSKEEP: And to be fair to Jeffrey Rosen's article, we'll say that another former clerk or person who clerked around her said that she had similar qualities but was very tough and self-confident. Judge Calabresi, thanks very much.

From the May 26 edition of CNBC's The Call:

KUDLOW: Greg, start with you. She is known as a judicial activist, making policy from the bench. We have this incriminating tape on her. She is a great one for empathy, quote unquote, and you know what? In the liberal New Republic, I'm sure you saw it, Jeffrey Rosen criticizes her, talking to law clerks and whatnot -- that she's not penetrating, she's not well prepared, and her opinions are sloppy. What do you think?

GREG VALLIERE (CNBC contributor): What do I think? Well, I think, Larry, could you not get a more pro-business justice than David Souter, that goes without saying --

KUDLOW: Even I acknowledge that.

VALLIERE: And I think that she won't be as pro-business, and I think she is an activist judge, and I think on issues like affirmative action, she's going to be at least an annoyance for business. But she's going to be confirmed. And there's a bigger story here, and that is that the politics dominate everything, and the idea that the right wing, that the Larry Kudlow-Sean Hannity right wing for weeks --

KUDLOW: Wooo! Wooo!

VALLIERE: -- will be beating up on an Hispanic woman.

From the May 26 edition of CNN's The Situation Room:

BLITZER: There was a tough article that Jeffrey Rosen, who's a law professor at George Washington University, wrote in The New Republic not that long ago. Among other things, he quoted people who worked with her on the courts as saying this: "They express 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." I assume you read that article that Jeffrey Rosen wrote.

AXELROD: I saw the article, yes. But I don't -- I think it flies in the face of the evidence and the experience. In terms of her temperament, you just heard someone who has -- who practiced before her in your previous piece talking about her being -- being tough, but fair. And that's what she is. She challenges lawyers who come in -- into her court to be prepared and make their case. And, of course, that is required on the United States Supreme Court.

Her colleagues talk about her intellectual rigor in arriving at these cases. And the president, who is, as you know, a constitutional scholar in his own right, spent a great deal of time talking to her about case law and about legal theory and was -- was very, very impressed.

So, you know, I think that it is a shame that people would take someone with her history as -- of excelling at every level of the law and try and make that case. And I'm not going to ascribe motives to it, but I don't think it comports with the history of her life and her career.

BLITZER: When the president interviewed her -- and we're told he spent an hour with her -- did -- did he ask her where she stands on Roe versus Wade, the Supreme Court decision authorizing abortion?