Rosen, Napolitano cite anonymous law clerks criticizing Sotomayor

››› ››› LILY YAN

The New Republic's Jeffrey Rosen and Fox's Andrew Napolitano cited criticisms by unnamed former law clerks of Judge Sonia Sotomayor, a potential Supreme Court candidate. According to an American University law professor, Rosen's and Napolitano's citation of law clerks is "extremely problematic."

The New Republic's legal affairs editor Jeffrey Rosen and Fox's Andrew Napolitano both recently cited criticisms by unnamed law clerks of 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor, a potential candidate to replace retiring Supreme Court Justice David Souter. Specifically, Napolitano's source was "someone who was a clerk for another federal judge," and several of Rosen's sources were "former law clerks for other judges on the Second Circuit." Beyond allowing sources who are not identified to throw darts at Sotomayor, Rosen's and Napolitano's citation of law clerks is problematic for a different reason, according to American University law professor Darren Hutchinson, who wrote, "[T]he use of clerks to determine whether a judge should receive a Supreme Court nomination is extremely problematic," because "[m]ost 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."

In his May 4 New Republic article -- highlighted by Matthew Yglesias, Center for American Progress Action Fund blogger, and Media Matters for America senior fellow Eric Boehlert -- Rosen wrote that "there are ... many reservations about Sotomayor," citing numerous anonymous sources, including "former law clerks for other judges." Referring to a "range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York," Rosen wrote: "Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They 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 later wrote, "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.' " In a May 4 blog post, the Politico's Ben Smith highlighted Rosen's attacks without commenting on Rosen's use of anonymous clerks.

In a May 4 post on his blog, Dissenting Justice, 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.

Similarly, on the May 5 broadcast of Fox News Radio's Brian & The Judge, co-host Napolitano stated that Sotomayor "has a reputation for not being a very hard worker." When co-host Brian Kilmeade asked, "[H]ow do you do everything that she's done and not be a hard worker?" Napolitano replied, "You have your clerks do the bulk of the work." He later added, "Now, this comes to me from someone who was a clerk for another federal judge where they sort of worked in a common area, and you can tell who the hard-working judges are and who passes stuff off onto their clerks. That's just one person's observation."

From Rosen's May 4 New Republic article:

But despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They 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.

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.

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. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)

Not all the former clerks for other judges I talked to were skeptical about Sotomayor. "I know the word on the street is that she's not the brainiest of people, but I didn't have that experience," said one former clerk for another judge. "She's an incredibly impressive person, she's not shy or apologetic about who she is, and that's great." This supporter praised Sotomayor for not being a wilting violet. "She commands attention, she's clearly in charge, she speaks her mind, she's funny, she's voluble, and she has ownership over the role in a very positive way," she said. "She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?"

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. It's possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities. But they're not motivated by sour grapes or by ideological disagreement--they'd like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard. Given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble.

From Smith's May 4 blog post, titled, "Down on Sotomayor":

The dangers of media-created front-runnerdom, brought to you by TNR's Jeffrey Rosen:

Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They 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.

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.

It goes on, but the central question seems to be whether she's the sort of heavyweight Obama wants.

From the May 5 edition of Fox News Radio's Brian & The Judge:

NAPOLITANO: There are rumors that it may be Hillary Clinton. There are rumors that it may be Sonia Sotomayor, who attended college with Sam Alito and with me, and who is now a judge of the United States Court of Appeals for the Second Circuit. That's the federal appeals court in New York.

She was born in the projects in the South Bronx, won a scholarship to Princeton, won a scholarship to Harvard Law School, was a federal prosecutor, a federal trial judge, is now a federal appellate judge, obviously a woman, obviously a Latina, obviously a liberal Democrat, obviously 15, 18 years younger than Justice Souter --

KILMEADE: But --

NAPOLITANO: -- so she fits everything the president wants.

KILMEADE: How would you describe her record?

NAPOLITANO: Spot -- well, from my point of view, I think I probably would've voted the opposite from her 95 percent of the time. She also has a reputation for not being a very hard worker.

KILMEADE: Really?

NAPOLITANO: Yeah, but that --

KILMEADE: How do you get to -- how do you do everything that she's done and not be a hard worker?

NAPOLITANO: You have your clerks do the bulk of the work.

KILMEADE: Really?

NAPOLITANO: Now, this comes to me from someone who was a clerk for another federal judge where they sort of worked in a common area, and you can tell who the hard-working judges are and who passes stuff off onto their clerks. That's just one person's observation. But in terms of President Obama, she fits his mold.

We've changed our commenting system to Disqus.
Instructions for signing up and claiming your comment history are located here.
Updated rules for commenting are here.