The Case Against Stereotypes and Whisper Campaigns
Jeffrey Rosen, legal affairs editor for The New Republic, wrote a piece Monday morning headlined "The Case Against Sotomayor," a self-titled "indictment" of a woman many believe to be a leading candidate for nomination to the Supreme Court. Putting aside your views on whether Judge Sotomayor is the right person for the job -- personally, I don't know enough to form an opinion -- Rosen's article is a sorry excuse for reporting that does not even come close to respectable journalism. To the contrary, the piece is no more than a collection of anonymously cast aspersions, aspersions that will be distressingly familiar to many women or minorities who have worked their way through America's leading law schools and on to successful legal careers.
Relying exclusively on anonymous quotes from a series of former law clerks -- law clerks who never actually worked for Judge Sotomayor -- Rosen publishes a recognizable, if unsettling, thesis. To paraphrase: "The leading candidate for the Supreme Court is a Hispanic woman with too much attitude and not enough brains for the job." Not until the final paragraph of the article does Rosen acknowledge: "I haven't read enough of Sotomayor's opinions to have a confident sense of them." This despite the fact that the author is a law professor at George Washington Law School who, presumably, had the time to read some of Judge Sotomayor's work before publishing his piece. Rosen's lack of diligence, however, does not stop him from reporting that the "word on the street" is that Sotomayor is "not that smart," lacks "command of technical legal details," writes opinions that are "not especially clean or tight," and would be unable to muster the brain power "to provide an intellectual counterweight to the conservative justices."
I generally try not to get worked up over every piece of sloppy journalism I read, especially not over sensationalist articles seemingly more interested in drumming up web traffic than reporting credible facts. But Rosen's piece is outrageous and should not be allowed to stand as a legitimate "assessment" of Judge Sotomayor's record or capabilities. I don't have an opinion on Judge Sotomayor's candidacy for the Supreme Court because, like Professor Rosen, I am not familiar with her work. But I do have an opinion on purported journalists publishing thinly veiled smears of prominent Latino/a lawyers based entirely on anonymous "sources" who invariably claim Latinos are too loud, too hot headed, and far too stupid to be entrusted with the jobs we have, let alone more important ones.
I do not know Professor Rosen and do not suggest that he deliberately portrayed Judge Sotomayor as a stereotypical caricature of a Latina. I do believe, however, that his piece represents shoddy, irresponsible, and grossly negligent reporting of the worst kind -- reporting that has consequences and that ought not be left unanswered. Reasonable people can disagree as to whether Judge Sotomayor has the ideal combination of qualities one would look for in a Supreme Court Justice. But anyone who is going to criticize a summa cum laude Princeton graduate who went on to Yale Law School and has risen to become a judge on the Second Circuit Court of Appeals as just too dumb to be on the Supreme Court better have much more to go on than vague and anonymous whisperings among random former law clerks. Far from an indictment of Judge Sotomayor, Rosen's piece is an indictment of The New Republic and of its author's journalistic integrity.
Andrew Manuel Crespo is a graduate of Harvard Law School. In 2007 he was elected the first Latino president of the Harvard Law Review.





















"should not be allowed to stand as a legitimate "assessment" "
Well, it could be a foil for a legitimate reply about the Judge rather than merely an attack on Rosen (however well deserved). Does anyone know the Judge well enough to rebut or cleanse the smears?
May 6, 2009 5:34 PM | Reply | Permalink
When did you stop beating your wife, eds?
May 6, 2009 9:49 PM | Reply | Permalink
Your brevity is merely cryptic.
May 7, 2009 4:19 PM | Reply | Permalink
Maybe you should try to unring a bell then.
May 7, 2009 4:49 PM | Reply | Permalink
Try making sense instead of mouthing cliches in a blog about the case against stereotypes!
May 7, 2009 6:07 PM | Reply | Permalink
I think what the laconic brewmn61 is getting at is that you've posed a loaded question. First the smear itself by Rosen needs to be supported. THEN you move to looking for rebuttal. No point talking about what time you beat your wife, when the key issue is whether you beat your wife.
May 8, 2009 7:21 PM | Reply | Permalink
Hey Eds, anonymous former co-workers of yours say you are a dipshit and a bully and never shut up.
Cleanse those anonymous smears.
May 9, 2009 12:55 PM | Reply | Permalink
If the candidate truly has the credentials and requisite intellectual firepower, it should be sufficient to unleash examples thereof. No getting down into the gutter with mudslinging critics necessary. When JFK as a presidential hopeful faced innuendos about his religious affiliation he contradicted the mean-spirited rumors with personal example, not with counter-innuendo. This is a different era and a much different job, but the same basic high ground principle applies.
May 6, 2009 6:04 PM | Reply | Permalink
I say the more unsourced rumors the better. Let them fly! Let all the scuttlebutt and opinions hang out, about Sotomayor and every other candidate. This is a hugely important decision, and its no time to let politesse, delicacy, pious discretion or careerist caution get in the way of the full truth.
All that stuff the lawyers gossip about at lunch and in the hallways? I want to hear it. And I want to hear the contrary opinions. I'm sure Sotomayor's many defenders will come back with vigorous testimonials to her brilliance. Good. As a result, more people will read her opinions to see who is right. Hopefully that includes Obama and his staff.
This is no time for no-drama Obama to go down the middle of the road with a pick that is merely safe and acceptable. We don't get that many chances. If Sotomayor is the best, then he should go for it. But if not, get someone else. We need to get someone on that court with a titanic legal mind: someone who can be an intellectual and moral leader, articulate a powerful new progressive jurisprudential framework, and start to undo two decades of conservative gains. Progressives should demand awesome.
May 6, 2009 11:27 PM | Reply | Permalink
the problem of course with anonymous unsourced smears is that it prevents anyone from evaluating the actual motives behind them and how much value we ought to give them.
May 7, 2009 8:48 AM | Reply | Permalink
That's something the reader should take into account when evaluating how much credibility to give the reports. But that's the reader's business.
May 7, 2009 12:34 PM | Reply | Permalink
this is a titannically unreflective thought
May 8, 2009 7:26 PM | Reply | Permalink
This is an interesting piece though not surprising to hear about the smear job on this judge.
Seems to me that nobody was worried about how smart Clarence Thomas was. But I think we can conclusively say now that he does the best "Silent Cal" Calvin Coolidge imitation ever! Nor do I recall anyone being concerned with the obvious personality problems of Justice Scalia or his father's love and adoration of Italian fascism the tentacles of which never fail to show themselves in the Justice's opinions. I don't seem to remember anyone being particularly concerned with Alito's clear manipulation of the law to his ideologically preferred ends or that he wasn't exactly amongst the first class of legal scholars in the country. He is a thorough and methodical, and by all accounts relatively affable reactionary but not anyone's idea of a brilliant jurist. In fact, it seems to me that for two generations now the Republicans have always gone into the second tier of jurists to find the tools they required to rollback the hands of time and to tip the scales of justice in the most reactionary possible direction. And as for the sorry political hack that managed to kiss republican politician's asses all the way to becoming Chief Justice, I don't think I have ever seen someone so obviously maladjusted as that man when he and his family were put on display prior to his confirmation. The sexual and peronal repression that man excudes is downright scary. So, whatever this hispanic woman judge's faults are, I'm not too terribly concerned about them.
Personally, all I want to see in the next nominee is that they are between the ages of 30 and 45 and they are reliably liberal in the same way that Justice Douglas was. If that means a man, a woman, a lithuanian, a peruvian, and arab American I really don't give a damn. Just very young and very liberal and I'll be happy.
May 7, 2009 1:35 AM | Reply | Permalink
...between the ages of 30 and 45...
that's crazy. and a bit unrealistic.
between 40 and 45 is possible but not likely - there have only been four justices under 45 since 1900.
between 30 and 40 just ain't gonna happen. and it probably shouldn't. especially if you are concerned about the supreme court being liberal. a 30 year old liberal today might not be considered all that liberal 50 years from now.
while i think it's good to try skewing the court a bit younger, i think it's also important for the court to have a healthy amount of turnover built into it. over time, turnover can create a relatively younger (and more progressive) court much more effectively than simply appointing a couple of really young justices. ultimately, a fresh court is better for progressive policy than a stale court.
May 7, 2009 9:39 AM | Reply | Permalink
It's not crazy. It's just not your personal preference. We disagree. I want a yungun.
May 7, 2009 11:48 AM | Reply | Permalink
Oleeb said:
"If that means a man, a woman, a lithuanian, a peruvian, and arab American I really don't give a damn. Just very young and very liberal and I'll be happy."
Hear hear! or is it here, here?
May 7, 2009 4:01 PM | Reply | Permalink
It would certainly be irresponsible to note that Jeffrey Rosen's brother in law Neal Katyal was a former clerk on the 2nd Circuit.
http://en.wikipedia.org/wiki/Neal_Katyal
And is currently serving as Deputy Solicitor General and almost a certain lock to move up to Solicitor General should his boss Elena Kagan get the nod over Sotomayor.
Irresponsible that is if I hadn't signed my own name and cited my source,
It is one thing to commit a piece of political hackery just to make your own contribution to the right wing noise machine, Christ we are used to that by now. But the idea that Rosen might have used his brother-in-law as an anonymous source to possibly secure his brother-in-law's promotion while in the process smearing a sitting Appeals Judge, well that should beyond the pale even by the barely existent journalistic ethics standards of DC.
Can I prove this? Well no, But it stinks to high heaven. And there are probably people who have been indicted on lesser circumstantial evidence. All three elements are there: means, motive, and opportunity.
May 7, 2009 10:41 AM | Reply | Permalink