With last week's news that President Obama will soon get to choose a Supreme Court nominee, media immediately began speculating about who he would choose. And, just as quickly, some media started trying to undermine potential selections. (Back when Democrats were expressing skepticism about President Bush's nomination of Samuel Alito to the high court, the media chastised them for "pre-judging" the nomination. Now the media itself is rushing to judge nominees before they are even nominees. What a difference a few years make.)
Second Circuit Court of Appeals judge Sonia Sotomayor has been the subject of the harshest criticism, led by New Republic writer Jeffrey Rosen. Rosen took a brief glance at Sotomayor's rulings, talked to a few people who don't like her, and typed up their anonymous complaints. Sound like an overly harsh assessment of Rosen's research? It isn't. In fact, that's pretty much how Rosen himself describes his research:
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.
Of course, that didn't stop Rosen from using anonymous quotes from the few people he did talk to in order to portray Sotomayor as too tempermental, too vain, and too stupid to serve on the Supreme Court.
Well, to be fair, Rosen's article wasn't based entirely on anonymous comments. He quoted 2nd Circuit judge Jose Cabranes by name. Unfortunately, he cropped Cabranes' comment to make it appear he was criticizing Sotomayor's intelligence. That's pretty bad. What's worse is that Cabranes was actually praising Sotomayor's intelligence.
The New Yorker's Amy Davidson caught Rosen's quote-cropping and posted the full quote on May 5, but The New Republic hasn't corrected the falsehood, and Rosen hasn't commented on it -- though he has responded to other criticism.
It is theoretically possible that Rosen accidentally omitted the part of the quote in which Cabranes described Sotomayor as "smart," then portrayed what was left of the quote as supporting the premise that Sotomayor is "not that smart." Seems pretty far-fetched, but it's possible. If that were the case, however, you would think he and The New Republic would have scrambled to correct the record. They haven't, which suggests that readers would do well to take everything Jeffrey Rosen writes -- and everything The New Republic publishes -- with a shaker of salt.
So Rosen's portrayal of Sotomayor as insufficiently smart is pretty thoroughly discredited. What of his suggestion that Sotomayor lacks the "temperament" to serve on the court? That's a point Rosen has come back to again and again. Here he is in his original article:
They [Rosen's unnamed sources] expressed questions about her temperament. ... 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."
And more, from his follow-up:
The piece was not meant to be a definitive "case against" Judge Sotomayor's candidacy. It was intended to convey questions about her judicial temperament that sources had expressed to me in the preceding weeks.
A few weeks ago, I received phone calls from eminent liberal scholars I know and trust. These scholars closely follow Sotomayor's work and expressed questions about her temperament.
Anonymous comments aren't ideal, but there was no other way, in this situation, to get people to share candid questions about judicial temperament.
I wasn't presuming to make a definitive judgment, but to encourage the White House to weigh considerations of temperament against the many other factors they'll be considering. ... For the next Supreme Court seat, the president needs to be sure that the nominee's temperament and abilities are not merely impressive but absolutely stellar.
In case anyone hadn't yet gotten the point, Rosen also quoted descriptions of Sotomayor's "temperament" and aggressiveness that appear in her entry in the Almanac of the Federal Judiciary. But that might not be the best source to rely on: American University law professor Darren Hutchinson notes that Antonin Scalia's well-known aggressive tendencies are described much differently by the almanac.
As Hutchinson explains, the descriptions of Sotomayor as too temperamental are quite consistent with a clear double-standard in how men and women are portrayed in the media:
A persistent and ubiquitous gender stereotype portrays smart and aggressive women as domineering, mean, nasty bitches. This stereotype explains much of the negative treatment that Hillary Clinton received during her presidential campaign. Media commentators -- including so-called liberals such as Keith Olbermann and Chris Matthews -- described Clinton with sexist language that would likely result [in] a finding of sex discrimination if companies used it to evaluate women employees.
Most of the early reviews on Sotomayor concede that the summa cum laude Princeton and Yale Law School graduate is smart. The worst reviewers, however, say that she lacks judicial temperment. Rather than being firm, but flexible, detached but engaged, her detractors describe her as a firery Latina tempest waiting to knife and brutalize lawyers in the courtroom.
For Sotomayor, being a sharp interrogator and requiring lawyers to be "on top of it" are negative qualities. These traits are not negative in most men, certainly not white men.
In Scalia, toughness is positive; in Sotomayor, it is nonjudicial. If Scalia asks irrelevant questions, he is just being a dutiful "law professor" trying to hold the attention of his class. If Sotomayor does the same thing, she is just interested in hearing herself talk. When Scalia duels harshly with litigants, the "spectators" watch in amazement. If Sotomayor asks tough questions, she is seen as difficult, temperamental, and excitable. The disparate treatment is too dense to deny.
Despite the glaring flaws, Rosen's assessment of Sotomayor was widely adopted by other media figures.
Mark Halperin, Time's conventional-wisdom maven, announced "Jeff Rosen Raises Warning Flags on Sotomayor" and described "Jeff" Rosen as "the New Republic's legal eagle." (What of Rosen's thin sourcing and dishonest quoting? Who cares! It's Jeff! He's a legal eagle!) The Atlantic's Marc Ambinder touted Rosen's piece as a reflection of "the respectable intellectual center." (Ambinder's colleague, Ta-Nehisi Coates responded: "You don't get to be the 'respectable intellectual center' and then practice your craft in the gossip-laden, ignorant muck. Not for long anyway.")
If the "respectable intellectual center" approached the prospect of a Sotomayor nomination by doctoring quotes in order to trash her intelligence, you might wonder what the disreputable fringe did. Well, National Review's John Derbyshire and Mark Hemmingway described her as "dumb and obnoxious," but they weren't really moving the ball forward in the anti-Sotomayor campaign; they were just interpreting Rosen's work.
Fox News' Andrew Napolitano told listeners on his radio show that Sotomayor "has a reputation for not being a very hard worker" -- like Rosen, citing anonymous law clerks to back up the claim.
Even David Letterman got in on the act. Here's Bob Somerby, describing Letterman's Sotomayor sketch:
Letterman's clip was openly racial/ethnic, a throwback to what once seemed to be an earlier day. With it, he gave viewers a throwback first impression of a sweaty, crazy, yelling jurist -- of a woman who graduated summa cum laude from Princeton in her real life, among other acts of distinction. But this astounding bad judgment by Big Humor Dave followed an act of grotesque judgment by the New Republic's Jeffrey Rosen. Rosen authored a gruesome post built on anonymous sources which -- let's be honest -- openly trafficked in racial stereotypes.
Dumb. Lazy. Temperamental. It's enough to make you wonder how she made it from the South Bronx to Princeton, Yale, and a federal judgeship. And remember: She didn't get there the George W. Bush way. You know many lazy, stupid people who win Princeton's highest academic prize?
Worst of all, there's no reason to think that the treatment Sonia Sotomayor received from the media over the past week will stop with her. The coverage of Sotomayor has clearly been built at least in part on gender and racial stereotypes, so we can probably expect similar coverage of other women and minorities who are mentioned as possible nominees.
Some in the media have even managed to convince themselves that white men are being unfairly denied consideration for the Supreme Court opening. Halperin sniffed that "White Men Need Not Apply." Chris Matthews described nominating Sotomayor as the "usual cookie cutter" approach. (Even though 96 percent of Supreme Court justices have been white men, Chris Matthews thinks the daughter of Puerto Rican parents is the "cookie cutter" choice. Right.) Lou Dobbs suggests that if Obama considers only women for Justice David Souter's seat, it would mean "the death of meritocracy on the court." (Again: 96 percent of justices have been white men. When, exactly, was this "meritocracy"?) Pat Buchanan insists "working class whites" are "the ones discriminated most today."
Just think what they're going to say if President Obama actually does nominate a woman or a minority.