Echo chamber: Fox News runs with Rosen's anonymously sourced claims that Sotomayor is "domineering"

During the May 26 edition of Fox News' America's Newsroom, co-host Bill Hemmer and Supreme Court reporter Shannon Bream relied on anonymous sources to characterize Judge Sonia Sotomayor, President Obama's nominee to replace retiring Supreme Court Justice David Souter, as "domineering," "bogged down in marginal details," and "a bit of a bully." Hemmer said Sotomayor "is reportedly domineering in oral arguments. She can get bogged down in marginal details, failing to see the forest for the trees." While Hemmer did not cite a source for his claims, his characterization of Sotomayor echoes a May 26 Wall Street Journal blog post by editor Ashby Jones, who sourced such characterizations to a May 4 New Republic article by legal affairs editor Jeffrey Rosen. Before Hemmer's characterization of Sotomayor, Bream referenced Rosen's piece, stating 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." However, as Media Matters for America has documented, several of Rosen's sources were unnamed "former law clerks for other judges on the Second Circuit," and 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."

Hemmer said of Sotomayor: "She is reportedly domineering in oral arguments. She can get bogged down in marginal details, failing to see the forest for the trees." The Journal's Jones wrote of Sotomayor: "But she also 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." In his piece, Rosen wrote of Sotomayor:

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.

Before Hemmer characterized Sotomayor, Bream said of her:

BREAM: She currently sits on the 2nd circuit, and there are a lot of objections. 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.

In a May 4 post on his blog, Dissenting Justice, American University law professor Darren Hutchinson wrote of "Rosen's Biased Sample":

[C]lerks for other judges do not have the best ability to evaluate Sotomayor. In fact, the use of clerks to determine whether a judge should receive a Supreme Court nomination is extremely problematic. Most clerks have just graduated from law school, have never tried a case or practiced law, and do not have sufficient experience or knowledge of the law to make an informed assessment of a judge. Given these inherent weaknesses associated with a law clerk's opinion of a judge, Rosen's reliance upon law clerks who never worked for Sotomayor is a rather crude and unhelpful way of evaluating her qualifications.

From the May 26 edition of Fox News' America's Newsroom:

HEMMER: Buckle up -- busy Tuesday. Fox News Alert now: new details on President Obama's pick to be the next Supreme Court justice. Fox News now confirming the president has decided on appeals court judge Sonia Sotomayor, described by critics as a controversial pick with a liberal track record; a judge who is on tape who once said the appeals court makes policy. You'll be hearing a lot about that in the days and weeks to come.

Good morning, everybody. That's where we start on a Tuesday. I'm Bill Hemmer. Hello to you.

MEGYN KELLY (co-host): Hi, Bill, welcome back. Hi, everybody. I'm Megyn Kelly here in America's Newsroom, and what a busy Tuesday it is turning out to be. We expect this White House announcement will take place at 10:15 this morning. We are told the president will be there, as will Judge Sotomayor. You will see it live here in America's Newsroom. It is history in the making. No word yet of Judge Sotomayor will actually speak at the announcement, but you will hear from her in one of her more controversial statements that we have on tape right here in a couple of moments.

HEMMER: In the next two hours, you will see President Obama, you will see for the first time the nominee. You will hear from Karl Rove; Tim O'Brien, our Supreme Court analyst; and a whole host of others throughout the next two hours. First, we start with Shannon Bream, live in Washington. Tell us about the candidate, the nominee.

BREAM: Well, Bill, there is a lot that everyone already knows out there. She is obviously an Hispanic woman -- would be the first one to be named to the court if she is indeed the nominee and makes it through the confirmation process. Undergrad at Princeton, law school at Yale, very well known for her strong academic record, but also known for being controversial.

She currently sits on the 2nd Circuit, and there are a lot of objections. 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.

But it sounds like even though she is going to be a pick that is going to pretty much appease the president's far-left wing of supporters and folks who wanted to see her make it to the court, he is definitely not backing down. This is a bold choice, and it is not going to be easy to navigate through Capitol Hill.

HEMMER: [Inaudible] her life is literally going to be picked apart, and that begins today, Shannon, as you know from past nominees and their experience. She is reportedly domineering in oral arguments. She can get bogged down in marginal details, failing to see the forest for the trees. Is that part of the criticism you were alluding to?

BREAM: That is part of the criticism. And, you know, people are going to pick apart everything she's done -- every tax return, every opinion she has written -- and we have to expect that the White House has been doing that. You know, since President Obama was elected, I know we have been putting together notebooks and have been looking into backgrounds of folks, and certainly Judge Sotomayor was always at the top of our list.