Sotomayor ’76 the focus of attacks

A federal judge on the U.S. Court of Appeals for the Second Circuit, Sotomayor has long been rumored to be a top contender for the next open seat. On website of The New York Times, Sotomayor is the most-selected justice in the “If You Were President…” feature, seemingly with more than twice as many votes as the next contender, Solicitor General Elena Kagan ’81.

But a May 4 article written by Jeffrey Rosen and published by The New Republic criticized Sotomayor’s intellectual qualifications and judicial temperament. In the article “The Case Against Sotomayor,” Rosen said he had spoken with many of Sotomayor’s colleagues who “expressed 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.” He added that “the most consistent concern was that Sotomayor, although an able lawyer, was ‘not that smart and kind of a bully on the bench.’ ”

Sotomayor was also described by colleagues as “domineering” and someone with “an inflated opinion of herself,” Rosen wrote.

The article set off a firestorm of controversy about how vehemently Sotomayor is being attacked — especially in online forums — before even being nominated. But many University professors who specialize in the judiciary said they did not find the criticisms of Sotomayor to be unusually vicious, adding that they did not believe the claims levied by critics like Rosen were likely to have a major impact on who Obama eventually nominates.

“By historic standards the attacks on Judge Sotomayor are fairly mild,” Wilson School professor Charles Cameron GS ‘88 said in an e-mail, noting that former justice Louis Brandeis and other nominees to the court faced comparable criticism upon their nominations. “The fact is, when political elites are polarized — as they are now — you can expect politics to get nasty.”

Politics professor Keith Whittington echoed Cameron’s sentiment, noting that “the current discussion of Sotomayor is not particularly unusual for someone widely seen as the frontrunner for the nomination.”

But politics professor Paul Frymer said in an e-mail that he couldn’t remember any other potential candidates who have been attacked so strongly before being nominated. “Everything gets earlier and earlier with blogs and stuff so that I’m not surprised it’s happening so early.”

An editorial in the Times last Friday noted that “Supreme Court vacancies have long been political fights, sometimes intense ones, but generally, they begin when a candidate is picked.”

“This time, the attacks have already begun, many aimed at Judge Sotomayor and beyond the pale of reasonable debate,” the editorial continued. “She is being called insufficiently intellectual despite her stellar academic credentials. Her temperament is being assailed, generally by anonymous detractors. Online critics have even groused about her weight.”

Several professors defended Sotomayor’s qualifications for the post and cast aspersions on Rosen’s accusations.

“[Sotomayor] possesses an extraordinarily distinguished academic record … [and] her personal story is an inspiring one,” politics professor Robert George said in an e-mail. “She does not come from a privileged background. She made her way in life on the basis of her natural intellectual gifts and sheer determination to succeed.”

Frymer explained that the validity of some of Rosen’s claims in his article in The New Republic have been called into question since its publication.

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“Rosen has been discredited,” Frymer said, adding that Rosen has already admitted to misinterpreting one of Sotomayor’s legal footnotes and that and one of his anonymous sources is rumored to work for Kagan.

“It’s possible that some of the anonymous sources were true,” Frymer said. “I don’t think we know if [the charges are] grounded because he didn’t give us any evidence.”

Cameron criticized Rosen’s article as “hasty and poorly supported,” adding that, “from a historic perspective, [Sotomayor] is very well qualified for a seat on the High Court.”

Because of the nature of Rosen’s criticisms, it is unlikely that they will have a severe impact on Sotomayor’s chances of being nominated, Frymer said.

“He says she’s a bully, and that’s something we hear about a lot of judges,” Frymer explained. “The charges made against her are not financial impropriety or anything so I think she can withstand it, especially since they’re so shaky … I would need to know more, but she seems like she deserves a chance to be considered without these anonymous attacks.”

“The ‘accusations’ seem mostly unsubstantiated gossip about ‘temperament,’ nothing of genuine substance,” he added.

George echoed a similar sentiment. “The public has very little sympathy with lawyers generally, and a judicial nominee isn’t likely to lose much public support as a result of lawyers claiming she has been mean to them,” he explained, adding that the more relevant critiques of Sotomayor target her interpretation of the Constitution.

“The concern about Sotomayor will be that she does not respect the distinction between law and policy ... the distinction between applying the law as established by the Congress or the framers and ratifiers of the Constitution (the proper role of a judge) and changing the law, or making new law, to fit the judge’s personal beliefs about what policies the nation should embrace,” he continued.

Whittington noted that leaking the names of potential nominees early in the process may help Obama “learn whether particular nominees are likely to be especially controversial and result in a drawn-out confirmation battle.”

“I doubt that much has emerged yet from the Sotomayor discussion that would deter the president from nominating her,” Whittington added.

Sotomayor’s background as a Hispanic female and her bipartisan support — she was nominated to her previous position as a federal district court judge by former president George H.W. Bush — will act in her favor should she be nominated, George said.

“Needless to say, such a reputation would be an asset in a confirmation battle for a seat on the Supreme Court,” he said.

Sotomayor would be the first Hispanic justice and the 10th Princetonian ever to serve on the Supreme Court.

Frymer noted that Obama has made it clear he is in no rush to appoint someone the seat.

“It certainly seems like the response to the attack has been very strong,” Frymer explained. “The longer he takes, the more likely it will blow over.”