Third-rate hatchet job on Sotomayor gains traction

Think Progress compiles a list of smears against Obama's presumptive Supreme Court nominee, Sonia Sotomayor, who is being caricatured as dumb and pushy for no good reason. If confirmed, she would be first Latina Supreme Court justice. The subtext (or, the top text if you're a conservative talk radio blowhard), is that Sotomayor's impressive academic and professional record doesn't prove she's qualified because she must have been a beneficiary of affirmative action.

A federal judge on the Second Circuit, Stomayor wasn't a high profile figure before her name came up as a potential SCOTUS nominee. So, there's not a lot of raw material out there to fashion an attack, especially if you're too lazy to read her opinions. So, most of the "dumb" and "pushy" allegations can be traced a single secondary source, a hatchet job by the New Republic's legal commentator, Jeffrey Rosen.

His piece, entitled "The Case Against Sotomayor: Indictments of Obama's front-runner to replace Souter," ran on Monday.

Therein, Rosen admits therein that he hasn't read enough of Sotomayor's judgin' to form his own opinion about her intellect. Instead, he relies on the quotes of unnamed sources with unexamined motives who say that Sotomayor is "not that bright" or in one case, that s/he thinks that other people think that think that Sotomayor is not that bright.

Way to build an airtight case there, Prof. Rosen. If you're going to imply that someone else lacks intellectual heft, you might want to read her decisions before opining.

It just so happened that the anonymous allegations Rosen levied against Sotomayor fit the some classic stereotypes about powerful women (ball busters, pushy, "inappropriate") and Latinas (mercurial, crazy).

If these charges were true, they would be relevant. Intellect and temperament are two of the most important criteria for a SCOTUS nominee. It's not racist or sexist to question the qualifications of a female or minority nominee.

Allegations of prejudice don't always turn on the motives or beliefs of individuals. There are broader inequities that can give one party in a public debate the upper hand without anyone realizing it. It's that kind of systematic racism and sexism that's at play here.

Rosen probably didn't consciously conclude that he had to do a lot less work to label Sonia Sotomayor as an idiot than he would if he were making the same charge against a equally distinguished white male nominee. But let's be real--we're all social primates social primates here. Everyone operates on implicit assumptions about what we can get away with and what's not going to fly. That's also more or less what it means to write for an audience. Rosen adduced that Sotomayor's alleged intellectual inferiority would be easy sell, otherwise he would have worked a lot harder to convince us. 

Sexism and racism work by denying people the benefit of the doubt that more privileged people get as a matter of course. We knew at the outset Sotomayor was a very well-educated, highly accomplished lawyer whom Barack Obama, (acknowledged smart guy and former law professor) might appoint to the Supreme Court.

That's all solid evidence that Sotomayor is a credible candidate, as opposed to some dumb crazy beneficiary of the little-known New York federal judge affirmative action program. It's not dispositive, but knowing all this, a reasonable person would demand a lot of high quality countervailing evidence before giving up the presumption that Sotomayor is pretty darned bright. Whether she's the brightest candidate or best-qualified person for the job are separate questions that can only be answered the old fashioned way, by gathering more evidence.

Yet, for some reason, Rosen and TNR didn't think it was necessary to mount a serious case for Sotomayor's intellectual inferiority--as in, a case that engaged with her ideas, or pointed out specific areas where her thinking is confused. They thought they had enough credibility to get away with a "case" against Sotomayor based on the "indictments" of her unnamed associates. They weren't afraid of getting laughed out of court, so to speak.

As it turns out, it wasn't a bad bet. Mark Ambinder of the Atlantic writes: "Conservative talk radio hosts have begun impugning Sotomayor's credibility. And the respectable intellectual center -- see Jeffrey Rosen's case against her temperament and inherent intellectual abilities -- is beginning to have doubts."

It just goes to prove my point that admitted ignorance has done nothing to diminish Rosen's credibility with the elite media while Sonia Sotomayor has been branded as a dunce based on a few blind quotes.

Comments

[Ismone]

Funny thing--she's a George H.W. Bush appointee. Of course, so was Souter. Maybe that's what they're afraid of. And she's a former prosecutor! You think they'd be excited.

[Spiny Norman]

Just remember that *any* time Ambinder deploys the word "intellectual," it is suffused with (unintentional) irony.

[yale lawyer]

Good post about the way these stereotypes work. It is just so, so easy for people to believe certain things about a Latina woman.

Rosen has now posted a response to his critics here:
http://www.tnr.com/politics/story.html?id=6168aeb7-9869-43eb-b401-2204a0d84478

I find it very interesting that Rosen's defense of his original article attacking Judge Sotomayor does not make even the slightest attempt to defend what was by far the most explosive, and frankly the most ridiculous, cluster of smears that appeared in the original article: the shocking, repeated claim that Judge Sotomayor was "not that smart," "not the brainiest," asks questions that "don't get to the heart of the issue," would be unable to "provide an intellectual counterweight" to the right, et cetera. This not-smart allegation was the one that set off the loudest alarm bells in the legal circles I travel in. Whatever else you want to say about Judge Sotomayor, she has a clear reputation in the real world as one of the intellectual stars of the Second Circuit, a powerhouse of a judge who asks excellent, piercing questions at oral argument and writes thoughtful, brilliant opinions. Practically everyone who has ever worked with (or against) Sonia Sotomayor brings up her intellectual firepower pretty early in the conversation. Thus, the "not smart" allegation was the one that led so many lawyers I talk to to conclude that Rosen is either part of, or being used by, some kind of whisper smear campaign against this judge. So I find it extremely telling that Rosen has apparently retreated entirely from the allegations about Sotomayor's intelligence. From reading "More Sotomayor," one could get the impression that the original article was all about temperament, not smarts. But it was the "intellectual counterweight" question that Rosen himself said in the original article was what mattered "most of all"! And it's this allegation about intelligence that most deeply plays into the hands of anti-"affirmative action" conservatives who just love to suggest that this woman, despite graduating summa cum laude at Princeton and so on, isn't as smart as a white guy.

[Eric Jaffa]

A Republican Senator (Alfonse D'Amato of NY) on Sonia Sotomayor, September 30, 1997:

D'AMATO: As it relates to Justice Sotomayor, what can one say but "only in this country." The daughter of a humble working family has risen by way of her legal, scholastic stewardship to the highest trial court in the federal district of, and premier district I might add with some prejudice, of the Southern District of New York where she has distinguished herself.

And I predicted to this committee, almost five years ago, that Judge Sotomayor would be an exemplary, outstanding justice. She has demonstrated that, repeatedly. She has shown compassion, wisdom, one of the great intellects on the court.

Her experience, both as a prosecutor, civil litigator, and federal trial judge, makes her an exceptionally qualified candidate for the Second Circuit.

[B-Money]

Where was this outcry when Gonzalez was up fr AG and was raked over the coals? Hmmmm....I guess he was NOT qualified huh? As a Latino, both instances disturb me equally. Just for the record!

[mark white]

Admitted ignorance is something you should consider as you look in the mirror.

The only thing that got her nominated was the fact that she is Hispanic and Female.

Isnt that not sexist? I know, it isnt when it works in your favor.