Milbank joins smear campaign challenging Sotomayor's intellect

As purported evidence that President Obama "opted for biography over brain," Dana Milbank asserted in his May 27 Washington Post column: "As a legal mind, [Supreme Court nominee Judge Sonia] Sotomayor is described in portraits as competent, but no Louis Brandeis. Nor is Sotomayor, often described as an abrasive jurist, likely to be the next Earl Warren. But her bio is quite a hit." In doing so, Milbank echoed recent attacks on Sotomayor's intellect. However, Media Matters for America has identified numerous "portraits" -- by law scholars and legal professionals who have worked with Sotomayor -- in which she is described as "highly intelligent" and even "brilliant."

For instance, in a May 5 post on the blog PrawfsBlawg LLC, Rob Kar, a former clerk for Sotomayor, addressed the "spurious comments that have been emerging from people who are less familiar with her." Kar wrote that Sotomayor is "an absolutely brilliant jurist and an absolutely brilliant person" [emphasis in original]. He continued:

I count myself privileged to have worked closely with some of the very best minds in the world, in both law (at Yale Law School and in the legal academy) and philosophy (at both Harvard College and the University of Michigan's graduate school, which was widely considered the best department in ethics in the world when I was there.) Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter. (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.) Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this. And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are -- quite frankly -- pedantic in comparison.

Moreover, in a May 26 statement reported by The New York Times, Manhattan District Attorney Robert M. Morgenthau -- who hired Sotomayor as a district attorney in 1979 -- wrote that "[t]hroughout her career Judge Sotomayor has shown that she possesses the wisdom, intelligence, collegiality and good character needed to fill the position for which she has been nominated." Morgenthau was also quoted in a May 27 New York Law Journal article as saying Sotomayor "was highly intelligent, practical, understood the street, very tough, very fair and always prepared." The article also quoted Judge Jon O. Newman -- Sotomayor's colleague in the 2nd U.S. Circuit Court of Appeals -- as saying she is "a brilliant lawyer and a very sound and careful judge." Newman also said on the May 26 edition of CNN Newsroom that Sotomayor is "first and foremost an outstanding legal mind. She's a brilliant person and an outstanding judge. Those are the essential qualities that qualify her for the Supreme Court."

As Tom Goldstein noted on SCOTUSblog, "Opponents' first claim -- likely stated obliquely and only on background -- will be that Judge Sotomayor is not smart enough for the job" because "[t]he public expects Supreme Court Justices to be brilliant." Goldstein added: "The objective evidence is that Sotomayor is in fact extremely intelligent. Graduating at the top of the class at Princeton is a signal accomplishment. Her opinions are thorough, well-reasoned, and clearly written. Nothing suggests she isn't the match of the other Justices." Goldstein is a partner at Akin Gump Straus Hauer & Feldmann LLP and "co-head" of the firm's "litigation and Supreme Court practices" who "teaches Supreme Court Litigation at both Stanford and Harvard Law Schools."

From Milbank's May 27 Washington Post column:

It was an unusual way to introduce the woman who would succeed Justice David Souter, but Sotomayor's nomination is itself a bit of a curveball.

Some thought Obama would nominate Judge Diane Wood or Solicitor General Elena Kagan -- big brains who could serve as a counterweight to the court's conservative philosophers. Others expected a well-known politician such as Michigan Gov. Jennifer Granholm.

In selecting Sotomayor, Obama opted for biography over brain. As a legal mind, Sotomayor is described in portraits as competent, but no Louis Brandeis. Nor is Sotomayor, often described as an abrasive jurist, likely to be the next Earl Warren. But her bio is quite a hit. In Spanish, her surname can be translated as "big thicket" -- and that's just where Republicans could find themselves if they oppose this up-from-poverty Latina.