TNR's Rosen misrepresented footnote in making purported "Case Against Sotomayor"

In a May 4 New Republic article about Second Circuit Court of Appeals judge Sonia Sotomayor, legal affairs editor Jeffrey Rosen falsely asserted that "a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor [United States v. Samaria] might have inadvertently misstated the law in a way that misled litigants." But Winter's footnote neither says nor suggests any such thing. As American University law professor Darren Hutchinson noted in a May 4 blog post, Winter's footnote in the case says that a litigant in a third case has read Sotomayor's Samaria opinion in a way that "would attribute to it the overruling of a long-standing line of cases in this circuit." Winter makes it clear that Sotomayor's opinion provided no actual basis for the litigant's erroneous interpretation: "Samaria does not purport to address the validity of those cases in any way." As Hutchinson wrote, "Rosen has completely misrepresented Winter's footnote in order to question Sotomayor's competence as a judge, when the footnote actually criticizes the attorney's misplaced reliance upon the opinion she authored."

The footnote from Winter's opinion in United States v. Juncal:

We note that, after argument in the present matter, we decided United States v. Samaria, 239 F.3d 228 (2d Cir. 2001). In a yet more recent case, an appellant has argued that Samaria stands for the proposition that a conscious avoidance instruction is per se error in a conspiracy case where the substantive offense underlying the conspiracy charge requires proof of specific intent. See United States v. Tropeano (Barroso), No. 00-1708 (2d Cir. Argued Feb. 26, 2001). Such a reading of Samaria would attribute to it the overruling of a long-standing line of cases in this circuit holding that, while evidence of conscious avoidance cannot support a finding that a defendant knowingly participated in or joined the conspiracy, it may support a finding that a defendant knew of the unlawful objectives of the conspiracy. See, e.g., United States v. Ferrarini, 219 F.3d 145, 155-56 (2d Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3410 (U.S. Dec. 6, 2000) (No. 00-945); United States v. Eltayib, 88 F.3d 157, 170 (2d Cir. 1996); United States v. Scotti, 47 F.3d 1237, 1242-43 (2d Cir. 1995); United States v. Beach-Nut Nutrition Corp., 871 F.2d 1181, 1196 (2d Cir. 1989); United States v. Lanza, 790 F.2d 1015, 1022-23 (2d Cir. 1986). However, Samaria does not purport to address the validity of those cases in any way. Samaria's discussion of conscious avoidance related only to a sufficiency issue, and the panel thus made it clear that, on the evidence before it, the requisite level of intent could not have been found even on a conscious avoidance theory. See 239 F.3d at 239-42. The evidence in the present case, however, was that appellant had strong reason to suspect that the transaction was fraudulent but deliberately failed to pursue the issue. Because conscious avoidance goes only to prove Lancaster's knowledge, and not to show his intent to participate in the scheme, Samaria is therefore of no relevance.

As blogger Matthew Yglesias has noted, Rosen wrote in his article 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."

From Rosen's New Republic article:

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.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants.