Jeffrey Rosen has responded to the criticism highlighted by American University law professor Darren Hutchinson and then by Media Matters that he misrepresented a footnote by one of Judge Sotomayor's colleagues. In his original article, Rosen claimed that in the footnote Judge Ralph Winter “suggest[ed] that an earlier opinion by Sotomayor might have inadvertently misrepresented the law in a way that misled litigants.” As Prof. Hutchinson and Media Matters pointed out, Judge Winter's footnote did not say or suggest any such thing. Rather, as we wrote:
Winter's footnote in the case says that a litigant in a third case has read Sotomayor's Samaria opinion in a way that “would attribute to it the overruling of a long-standing line of cases in this circuit.” Winter makes it clear that Sotomayor's opinion provided no actual basis for the litigant's erroneous interpretation: “Samaria does not purport to address the validity of those cases in any way.” As Hutchinson wrote, “Rosen has completely misrepresented Winter's footnote in order to question Sotomayor's competence as a judge, when the footnote actually criticizes the attorney's misplaced reliance upon the opinion she authored.”
In a post with the headline “More Sotomayor,” following his original article headlined “The Case Against Sotomayor” (a headline that Rosen says he regrets and says he “hadn't seen in advance” ), Rosen writes:
Some readers have questioned my account of how “a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor [United States v. Samaria] might have inadvertently misstated the law in a way that misled litigants.” Indeed, the footnote is hardly a model of clarity-and I can see why readers might not come to the same conclusion I reached. But the careful observers of the Second Circuit I talked to, who were familiar with the case, said Winter was widely assumed to be making an effort to be polite, avoiding direct criticism of his colleague while trying to distinguish Sotomayor's holding in Samaria from some loosely written dicta. In their view, Sotomayor's dicta in Samaria could indeed be read to call the earlier cases into question, just as the litigants suggested, and they believe Winter was trying to contain the damage to avoid embarrassing his colleague.
Rosen does acknowledge that he “can see why readers might not come to the same conclusion I reached,” but then he justifies coming to that conclusion, not on the basis of what Winter actually wrote, but on the basis of what he says unnamed “careful observers ... said Winter was widely assumed to be” doing. In other words: Don't believe what you read; believe what I'm telling you “careful observers ... widely assumed” Winter meant. Moreover, if Rosen is right that Winter meant to criticize Sotomayor in the footnote for creating ambiguity by what Rosen calls “loosely written dicta,” then Winter did so in a footnote that Rosen says "is hardly a model of clarity." So let's get this straight. Rosen supports his claim about “concerns about [Sotomayor's] command of technical legal details” by citing a footnote that Rosen himself acknowledges can be read differently from what Rosen says it means.
That would seem to constitute another in a growing list of reasons for why Rosen's article is “hardly a model” of fairness or sound legal reasoning.
Rosen did not respond to The New Yorker's Amy Davidson, who pointed out that Rosen cropped a comment by judge Jose Cabranes to make it appear as though Cabranes was critical of Sotomayor's intellect - and that, in fact, the full quote included praise for Sotomayor's intelligence.