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Thursday, May 14, 2009

After 15 Years of Excellence, Sonia Sotomayor Suddenly Became a DUMB BULLY--But Only Just Before the Last Election!

Scandal!  Scandal!  I smell a possible scandal in the air!

After wondering about discrepancies between the lawyerly evaluations that Jeff Rosen cited in his hit-piece on Judge Sotomayor and some earlier ones that I had accessible, I had someone retrieve the full set of evaluations from her time on the Circuit Court.  It turns out that in every year that Judge Sotomayor has been reviewed, lawyers have literally raved (and I am using their words, not mine) about her legal skills (and have been very respectful, if also a bit fearful, of her judicial temperament).

Until suddenly, in 2007, and shortly before Obama was elected, everything changed on a dime, and she suddently became a "Dumb Bully."  (The most recent Almanac is 2008, so she only became dumb during the last election season, when--as a number of people are starting to think--it looks like some people who haven't wanted her on the Supreme Court may have been doing something scandalous... 


Until I can figure out how to upload scans to this blog, let me just type out the 2006 reviews, which are typical of the other years:

2006 Lawyer's Evaluations (Full Set). 

Lawyers raved about Judge Sotomayor's skills. 

"For a still young woman, she is truly incredible.  She is just a very, very smart, capable jurist."

"She's brilliant."

"She is a Supreme-Court caliber jurist."

"She is truly brilliant."

"I don't think we have anyone better."

"She really believes in the judicial system and tries her absolute best to make sure that it works for litigants.

She is hard working, tireless, brilliant, and just the absolute best."

"She deserves straight As across the board."

"She's very impressive."

"She is very, very smart.  She really picks up on issues."

"She has an excellent legal mind, but she also has a lot of street smarts."

"She has a fast mind and she is capable of making very intellectual arguments.  At the same time, she recognizes the need for the practical side of the law."

"She is outstanding."

"She is very good."

"I like her. I have been very impressed."

        Lawyer's Described Sotomayor as being businesslike in judicial temperament.

"She does not put up with any guff."

"She works hard, and she expects lawyers to be as prepared and hard working as she is.  She can lose patience if they aren't performing up to her standards."

"She is very exacting."

"She's not a good old boy, but she is decent enough to lawyers."

"She has my respect."

"Her demeanor is fine."

"She is judicious."

"She lets you know who the judge is.  She does expect lawyers to defer to her."

"She is very courteous, judicial and businesslike."

"She is impatient with lawyers who are not prepared."

         Lawyers said that Sotomayor is fairly active at oral argument.

"She is very active and well-prepared."

"You have to be on your toes with her, because she will ask very pointed questions."

"She is another one of those judges who will start questioning you about things that were never raised in the case before."

"You can practically see the wheels in her mind turning."

"She asks very well thought out questions."

"She's pretty engaging."

"She is very deferential to Judge Walker."

"She is very quick."

        Lawyers said that Sotomayor is impartial in civil matters.

"Truly, I don't see her tilting one way or the other."

"She doesn't seem to favor either side inappropriately."

"I've found her to be very fair."

"She has always treated both sides fairly."

"I really have no idea what her politics are."

"She is not predisposed toward either side."

"I think she is fairly neutral"

        Lawyer's praised Sotomayor's written opinions.

"I got a good opinion from her, so I think her writing skills are fine."

"Her legal ability is excellent."

"She is very bright.  She is very competent.  She gets to the meat of the case quickly."

"Her opinions are excellent.  They are well-written and reasoned.  They are easy to read and understand."


 


 

 

Posted by Rob Kar on May 14, 2009 at 11:00 AM in Law and Politics | Permalink

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Comments

This kind of reminds me of press coverage of John McCain: very good when he was running and not winning the nomination; increasingly bad and challenging when he was more successful; hostile when he was the GOP nominee. Conspiracy? Or perhaps a bunch of people who share a worldview reacting to the same information at approximately the same time?

Posted by: CJS | May 15, 2009 6:15:37 PM

"But here I am reminded of what Saul Levmore has been saying concerning the many problems with anonymous on-line exchanges. There is a, after all, a very big difference between a free exchange of ideas and the trading of anonymous barbs."

It's the height of irony for you to argue that anonymous commenters give rise to an intemperate discussion, given the breathless, accusatory rants that you have posted on this subject this week.

It may well be true that anonymous commenters are marginally more likely to be uncivil (I'd suspect that to be the case), but your Sotomayor posts are Exhibit A in support of the case that that affixing a name to written commentary does not guarantee the civility or reasonableness of the argument.

And I assure you, I'm not related to Jeffrey Rosen, Megan Rosen, or, to the best of my knowledge, any other prominent Rosens.

Posted by: Adam White | May 15, 2009 4:46:06 PM

I want to thank people for the input and questions. I had tried to leave a comment earlier, but apparently it didn't post. But I have a minute now to address a few issues.

1. Paul Horwitz: I very much appreciate your questions and careful thinking on this issue. I also appreciate your taking responsibility for your thoughts, and not posting anonymously. You've asked the degree to which this post was meant to be 'tongue-in-cheek,' and I can see you are asking sincerely, so here is my answer: I suppose the headline and much of the tone were meant more to be more attention-grabbers than anything. One poster suggested that I adopted a "Drudge-Style," and I suppose that's not far from the truth. But I was also being serious that these sudden discrepancies in the tone and content of the ALJ are suspicious, and should be investigated further. (At the same time, I take your point about tone, and have edited a bit--now that I've had a second to sit down and actually work on this.)

2. You've also asked whether I mean to be charging any particular person (named or otherwise) with doing things that are *deliberately* misleading. My answer is that I am not charging anyone in particular with anything yet, in large part because I don't think there's enough evidence yet to charge anyone with anything. What there are discrepancies that are hard to explain, and--in my view--genuinely suspicious given the context. I suppose it is possible, for example, that Judge Sotomayor suddenly became a much, much worse judge than she was between 2006 and 2007, and that enough people within the NY bar noticed this, and reached a sufficent group consensus, that a random survey of attorneys really did produce radically different results from the year before. But even if she did get this bad this quickly, reputations like the ones in the review I posted would tend to change more slowly in ordinary circumstances, wouldn't they? Consider, in this regard, how brief and far between oral arguments are on the Circuit Court. Very few attorneys even have face-to-face contact with appellate judges in the courtroom in a given year. And so I am posting to raise a pointed question, and one which calls out for an explanation--especially if a picture of this judge is going out, which numerous people are starting to rely upon in the media and elsewhere, based on this other, dubious evidence. Remember that there is a real person involved in this, and that she has a real work ethic, and a real reputation, which she has built up over a lifetime and against incredibly great odds. This isn't just a game.

3. You've asked me to come out and name specific people and make specific charges, but I don't see how anyone could do that yet. To articulate grounds for suspicion is not to articulate grounds for a charge against any particular person, or even to articulate any firm belief about what has happened. (If you find a dead body with a bullet in the head, that is certainly grounds for suspicion, but that doesn't mean one has evidence or even a view yet on whether the death was an accident, a murder, or a suicide.) Part of the point of expressing a suspicion like this is to see if anyone knows anything that might clarify things, or might even lay the suspicion to rest. But this is also why Ockam's Razor is not yet applicable. Ockam's Razor advises the adoption of simpler explanations of phenomena once all of the available evidence is in. It does not advise stopping the investigation of suspicious events, before all the evidence is in, just because one can explain sparse evidence in simple terms.

4. A number of people have commented on my use of bold and italics. My response is: I completely agree. Very poorly written. My only explanation is that I was on a plane from L.A. to Champaign all day yesterday, then got into my hotel room very late and couldn't get the wifi to work, and then had to be up very early to read a series of articles and get to an all day faculty retreat. But a number of people who I had informed of these discrepancies said that it was important to go public with them, and to do so quickly, and I promised that I would, and so I squeezed in a very, very quick post. I wish I could write better in these circumstances, but, hey, a lot has been happening very fast with this rumor mill on-line, and this is, after all, just a blog post. (But the bold really was annoying too, so--now that I've had a sec--I've taken it out.)

5. Paul Horwitz has suggested that it may be "distraction to say that [my] descriptions of her are starting to be vindicated. The AFJ strikes me a a poor source of serious evaluative information about judges. More importantly, whether or not Sotomayor is brilliant has, in my view, nothing to do with whether she is more brilliant than any other prospective nominee, and relatively little to do with whether she is the 'best' nominee for the Court. I doubt one can talk in any useful sense about having any one 'best' nominee for the Court, and even if one could the input that went into being the 'best' pick surely would not turn solely on brilliance."

My answer is that I couldn't agree more. But beginning with the ALJ issue, I did not not raise this issue, Jeff Rosen did, when he used recent ALJ evals to support the conclusions in his initial article entitled "The Case Against Sotomayor." He quoted them in publication to suggest that Judge Sotomayor is "not that smart," and is a "bully," and so contrary ALJ evals, and the present discrepancy, are certainly relevant to casting doubt on that inference. (His article and its problems have been dissected from numerous angles within the blogosphere, and so this was meant to focus in on one part of the evidence for these conclusions.) Turning to your next point, I also agree that brilliance is not the only thing to look for in a Supreme Court Justice, and this leads me to think that you may be misconstruing some of what I am doing here. My point is not to suggest that Judge Sotomayor is brilliant and should therefore be our next Supreme Court Justice. It is to defend her against attacks against her hard-earned and well-deserved reputation *whether or not she becomes a Supreme Court Justice.* This is also why I have never made any comparisons with any of the other nominees. Although I don't know any of them as well, everything I know suggests that all of the people on Obama's purported short list are truly gifted and extraordinary people--though perhaps each in slightly different ways. And so I really am being honest when I say that Obama would appear to be choosing from an extraordinary lineup. (Frankly, depending on what combination of traits Obama ends up looking for, I can see each one of them being a 'clear winner' in certain distinct senses.) But look, none of our views really matters on that ultimate issue (re: what combination of traits to choose), because that is for Obama to decide, and I'm quite sure that he can do this for himself. What I can do, though, is try to preserve a person's reputation against attacks in this highly-politicized period.

I encourage more thoughts. Someone in one of the earlier threads was concerned that I was not allowing a "free exchange of ideas" because some of my more notificatory posts did not allow comments. But here I am reminded of what Saul Levmore has been saying concerning the many problems with anonymous on-line exchanges. There is a, after all, a very big difference between a free exchange of ideas and the trading of anonymous barbs. For this reason, non-anonymous commenting is encouraged, but I'll likely delete any anonymous comments from here on out.

Posted by: Rob Kar | May 14, 2009 11:15:46 PM

I can't believe this post was written by a (noted) law scholar and not Perez Hilton.

Posted by: erik | May 14, 2009 10:44:02 PM

It seems likely to me that women are penalized more harshly for being aggressive or outspoken.

Although it wasn't a judicial nomination, I seem to recall that John Bolton was not confirmed by the Senate because he was considered "mean" to people and his demeanor wasn't acceptable.

Posted by: anymouse | May 14, 2009 8:24:23 PM

I don't think that the AFJ evaluations would matter for all nominees. However, if demeanor and temperament were raised as issues (which they almost assuredly would be for Posner and Easterbrook, and which they were for Sotomayor also), then I think the evaluations would matter, and people would care. Imperfect as it is, the AFJ is a way for lawyers to comment on judges they have encountered without committing career suicide.

For what it's worth, I think Rosen's article has gotten a lot more coverage than it should have. But I don't think criticizing him for relying so much on anonymous sources is fair either. I think it's unrealistic to expect practicing lawyers (not law professors, or lawyers now in politics, or lawyers who have otherwise mainly left the practice of law) to go on the record publicly criticizing a judge whom they may very well have to appear in front of again.

Posted by: D | May 14, 2009 8:20:06 PM

Though one wonders - if Easterbrook or Posner were nominated to the court, would anyone care that their AFJ evaluations of demeanor were negative? It seems likely to me that women are penalized more harshly for being aggressive or outspoken.

Yes. Since Robert Bork, opponents of nominations use anything and everything. This is incredibly politicized. For heaven's sake, it is the US Supreme Court.

It is funny, I originally posted this comment about Posner and Easterbrook because it was a reply to this:

I think quite a lot of the language is a fairly good tell --"outspoken," "difficult," "temperamental and excitable," "overly aggressive." Since when does *anyone* ever describe white men using those terms?

Posted by: Anymouse | May 14, 2009 7:55:19 PM

Though one wonders - if Easterbrook or Posner were nominated to the court, would anyone care that their AFJ evaluations of demeanor were negative? It seems likely to me that women are penalized more harshly for being aggressive or outspoken.

Posted by: anon | May 14, 2009 7:43:44 PM

I will also repost what I posted from the other thread regarding these code words.

Take a look at AFJ judicial demeanor for Frank Easterbrook and Richard A. Posner.

Easterbrook: "He is a very bright guy who simply enjoys hunting lawyers down and destroying them." All of Easterbrook's judicial demeanor comments are very bad. Words like "bad", "worst". "berates", "abuses" and "overly active" are used a lot with comments about Easterbrook.

Posner: "He often crosses over the line in his demeaning treatment of lawyers." Although Posner has a couple of positive comments about his demeanor, most of the judicial demeanor comments are not good.


Posted by: anymouse | May 14, 2009 7:24:56 PM

Since the last Anon has once again brought up the subtle insinuation of language, I will repost what I posted from the other thread, which took about 5 minutes of checking on Westlaw. These are two of the descriptive terms found in the Sotomayor entry in the Almanac, which apparently some readers took as code for 'female' or 'Latina'.

Doing a quick Westlaw search for 'outspoken' in the Almanac gives 21 hits for specific judges. 15 of the 21 results are male.
6 of 8 results for 'overly aggressive' were male.

Maybe the 'well-worn tropes' on display here are that certain judges, of all genders, ethnicities, etc., are described by lawyers using specific terms.

I have yet to see someone point to a specific instance of a Sotomayor critic insisting she is more temperamental or that she is less smart than male white counterparts because she is female and Latina. I have, however, now seen several supporters insist that any criticism of her is based solely on the fact she is female and Latina.

Posted by: D | May 14, 2009 6:54:16 PM

Perhaps Rob's post is a bit hyperbolic, but I think his larger point is sound and worth discussing. For many years, Judge Sotomayor has been well-regarded as a jurist -- those in a position to evaluate her have found her to be very intelligent, fair, and exacting in her demeanor. Now that she is a prospective nominee to SCOTUS, people like Jeffrey Rosen, have called into question (with very little hard evidence to support their claims) her entire career as a judge. And they have done so by trading upon well-worn tropes that insist (though never explicitly) that Latinas are temperamental and not as smart as their male (white) counterparts. Regardless of whether or not she is nominated, she has been done an enormous disservice. And I think this is the point of Rob's post.

Posted by: Anon | May 14, 2009 6:28:17 PM

"Aaron's argument, however, that the AFJ simply reflects the vetting process is laughable."

Bob, my argument was not that "AFJ simply reflect the vetting process." My argument was that the *change* in opinions reported by lawyers *might* be due to the vetting process, a la Miers, rather than the conspiracy posed by the original poster. Not an insignificant difference, in my opinion.

"If people were going on the record to criticize Judge Sotomayor's temperament or intellectual ability that would be one thing, but in the week and a half since Jeffrey Rosen's article, not one person has done so."

And nobody will. Or a least, nobody worth hearing from, namely people who regularly practice in her court. To do so would be career suicide. The fact that Rosen is getting this lashing for merely repeating information proves this point. Imagine if he had to practice in front of her. "Coming forward" by such people makes no sense: they literally have nothing to gain and everything to lose.

Posted by: Aaron | May 14, 2009 5:59:47 PM

I should clarify my earlier post. By "missing the point," I was referring to missing the point of this new information, not the point of Rob's post. For that, I apologize to Paul as his comment recognizes the limited value of the AFJ. Aaron's argument, however, that the AFJ simply reflects the vetting process is laughable. If people were going on the record to criticize Judge Sotomayor's temperament or intellectual ability that would be one thing, but in the week and a half since Jeffrey Rosen's article, not one person has done so.

Posted by: Bob | May 14, 2009 5:41:17 PM

"I think Paul, Aaron, and others are missing the point, which is that the AFJ is simply an unreliable source for information."

Bob, the "point" of this post is that "some people who haven't wanted [Sotomayor] on the Supreme Court may have been doing something scandalous." Second paragraph.

I'll give you a break on missing the "point", Bob, since "Scandal! Scandal!" can be somewhat subtle when in bold font.

Posted by: Aaron | May 14, 2009 4:51:27 PM

But Bob, with respect, I did say in my comment that I thought the AFJ was a poor source of evaluative information about judges. I am fine with discounting it altogether with respect to Sotomayor or any other judge. But that was not Robin's point, as I take it, or at least not his primary point. He went further to suggest that the AFJ comments had been deliberately and conspiratorially shaped, and then publicized, in order to capsize Sotomayor's chances of nomination to the Supreme Court. He did not say that there was a discrepancy that no one could explain; he said there was a discrepancy and fairly clearly suggested what he thought the explanation was. On this point, I respectfully suggest that he has not yet met a reasonable burden of proof, and that he doesn't seem to meet the Occam's Razor test. I do mean that with respect, since I have no reason to doubt that Sotomayor is a fine judge and that Rob sincerely admires her, and that this admiration is justified notwithstanding the AFJ. But I do think Robin's specific accusations had a higher burden of proof than could be met by simply showing differences between different editions of the AFJ.

Posted by: Paul Horwitz | May 14, 2009 3:20:54 PM

I think Paul, Aaron, and others are missing the point, which is that the AFJ is simply an unreliable source for information. Not one person has gone on record to say that Judge Sotomayor has a temperament issue, yet it is widely accepted in the media as true based on a few anonymous comments in the most recent version of the AFJ, comments which are directly contradicted by 15 years of anonymous comments in the AFJ that mention no such issue. Nobody knows for sure the cause of this discrepancy in the AFJ, but it sure seems strange, and in my view, is reason enough to discount all of the information about Judge Sotomayor in the AFJ, whether it be positive or negative.

Posted by: Bob | May 14, 2009 3:02:11 PM

So if Megan Rosen is Jeff's sister-in-law that means that back in 2007 she was making up or selecting reviews to smear Sotenmayor because she somehow sensed that (a) Obama would be elected president, (b) Elena Kagan would be picked as Solicitor-General, and (c) her husband's brother-in-law would be selected as deputy, and therefore such a smear would be useful to a sort-of in-law? Seriously? Or does the Rosen clan have some other reason for going after Sotenmayor en masse that we haven't heard yet?

Posted by: anon | May 14, 2009 2:54:54 PM

Count me among those quite unimpressed with this post. After all, why weren't Judge Wood, Judge Wardlaw, or other prominent liberal-leaning female, Hispanic, or female Hispanic federal appellate judges similarly smeared?

Well, I guess that doesn't fit the conspiracy theory.

Posted by: anon | May 14, 2009 2:24:09 PM

Okay, let's see:

Floating a conspiracy theory - Check
Excessive use of exclamation points - Check
Bolding - Check
Italics - Check
Uppercase - Check


You are officially a crazy person. Give it a rest.

Posted by: Anymouse | May 14, 2009 2:05:14 PM

Maybe there was a big conspiracy among her supporters, for several years, to submit rave reviews, and then in 2007, after having done such a good job of backfilling the record, they got lazy.

I mean, that conspiracy theory is just about as plausible as yours. This is insane, and embarrassing.

(Particularly with the overuse of boldfaced type -- it gives the appearance of a jailhouse brief, if not a Unibomber letter.)

Posted by: Adam | May 14, 2009 1:46:50 PM

Xanthippas:

I think you are the one missing the point. Paul, Aaron, and others are simply noting that the change in tenor of evaluations once Sotomayor's S.Ct. appointment became a real possibility is not necessarily an intentional conspiracy or a scandal, as Rob assumes it is.

Rather, it may well be possible that lawyers with legitimate concerns about her ability or temperament simply never felt compelled to note their concerns in the Almanac before there was a realistic possibility she could be promoted. (I have no idea how the Almanac is edited, or how comments are solicited or submitted, so I don't really know what explains the discrepancy, but accusations of what would appear to be intentional defamation certainly seem over-the-top, without more to go on.)

[Also, if Judge Sotomayor would approve of the tenor, the tenuous reasoning, or the horrific misuse of bold and italics in Rob's post, I might have questions about her temperament and judgment.]

Posted by: JP | May 14, 2009 1:41:11 PM

In the category of missing the point:

"People used to say many great things about Harriet Miers -- that is, until she was nominated to the Court. Then, everyone called her a DUMB REDNECK. I don't think the point was that she was this way in the everyday sense, but rather seemed this way when considering her for the most important legal position in the world."

Kar is quite clearly not talking about general comments being made about people who'd never heard or had nothing to say about Miers until she was nominated. He's talking about a specific change in tenor, from one year to the next, of comments in the "Almanac." Personally I wouldn't adopt the Druge-like language (even if intended to be satirical) but still, it's something worth looking into.

Posted by: Xanthippas | May 14, 2009 1:03:32 PM

I think what you're "smelling" is simply the Court vetting process. Instead of spinning conspiracy theories, perhaps the change in esteem among lawyers is due to the fact that judges, when vetted for nomination, have historically been viewed through a microscope through which all of the otherwise innocuous flaws are magnified.

People used to say many great things about Harriet Miers -- that is, until she was nominated to the Court. Then, everyone called her a DUMB REDNECK. I don't think the point was that she was this way in the everyday sense, but rather seemed this way when considering her for the most important legal position in the world.

The same can be said for Robert Bork -- once nominated, his lack of qualifications entered a magnafying glass of epic proportions.

I think the same probably goes for Sotomayor. Cleary she's not "dumb" in an everyday sense. Heck, I don't think anyone who gets into Princeton can even be considered such, almost by definition. But according to people with whom she has worked, and when considering her nomination to the Court, she is *dumber* than other more qualified people.

So, I know you were her clerk and all, but I think you're taking this article by Rosen way too personally. He wasn't insulting her on an everyday basis (if he was insulting her) but rather making the "case" that she's not the best choice for the Cour.

Heck, I don't even consider it an insult to say that someone is "dumber" than the most intelligent lawyers in the world.

Rob: If you are reading this, please e-mail me and confirm that you are willing to be my clerk, should I ever become a judge. I could really use someone with your "temperament"...er...fortitude in various situations. My high school reunion comes to mind. And when my 8 year-old calls me a "dork" imagine her confusion when you blast her with an ad hominem conspiracy theory. Like fish in a barrel.

Posted by: Aaron | May 14, 2009 12:41:33 PM

At least comments are finally allowed on one of Rob's posts.
I think I'll come back to this site when his guest stint is over, so I'm not treated to his daily opinions on how great his former employer is. This is gettng out of hand.

Posted by: D | May 14, 2009 10:59:23 AM

Dude, you are losing it. You are really starting to embarrass yourself. At some point you are just drawing negative attention to yourself.

So when the AFJ comments are good then the AFJ is good and when the comments are bad then the AFJ is bad?

I don't care one way or another and I don't think some random comments in the AFJ are going to sink any potential nominee. Unfortunately, this type of nonsense has been going on far too long and it is nice to see some people taking notice.

On the other hand, it is nice that you didn't disable the comments.

Posted by: anon | May 14, 2009 10:55:50 AM

This needs to be picked up by a major news outlet, just as Rosen's piece was.

Posted by: Anonymous | May 14, 2009 10:10:24 AM

A clarification and an add-on question:

1) The sentence above should have read: "... are you suggesting that a number of individuals are not only spreading false rumors about Sotomayor, BUT that they are deliberately spreading rumors about Sotomayor that they *know* to be false?"

2) How do you define "swiftboating?" How is it distinguished from "borking?" Or from other criticisms of or attacks on pubic officials and potential office holders? Were Judges Pryor or Pickering "swiftboated?"

Posted by: Paul Horwitz | May 14, 2009 9:47:12 AM

Rob, I can't quite figure out how tongue-in-cheek this post is. Are you in fact attributing intentionality to the persons you name here? That is, are you actually suggesting that "some people" were *deliberately* doing something "scandalous?" And are you suggesting, with or without familial relations, that any actions on the part of Megan Rosen or some other AFJ editor are deliberate?

While we're at it, and again to clarify, in your last post were you suggesting that Jeffrey Rosen is *deliberately* trying to "swiftboat" Judge Sotomayor? And are you suggesting that a number of individuals are not only spreading false rumors about Sotomayor, or that they are deliberately spreading rumors about Sotomayor that they *know* to be false?

These are, obviously, strong accusations. I cannot say they are not true, although that is hardly an adequate standard of proof. I do think that there are people out there including highly respect and connected people, who do stupid and underhanded things and spread rumors (although usually they do not knowingly spread false rumors, in part out of the (in my view incorrect) belief that the stakes for the Supreme Court justify this kind of behavior, and in part because some smart people invariably get involved in politics and become enamored of particular behaviors that they associate with politics, rightly or wrongly. I am not inclined to judge one party differently than another on this basis; what I am talking about is the behavior of some politically connected insiders in the law, not people of a particular ideology.

That having been said, neither am I willing to make such accusations lightly, and I think such accusations are less likely to be completely true the more detailed they become; I think it rather unlikely, for instance, that there has been a good deal of deliberate gaming of AFJ comments for political purposes, especially at the hands of any organized or well-connected players, because such an assumption strikes me as too elaborate, and making too many assumptions about human intentionality and foresight, to be likely to be true. You've criticized Rosen a couple of times now for not naming names. But you've also, at least twice, referred without specifics to "some people" who do not want Sotomayor on the SC, and have suggested that they are *deliberately* acting against her in knowingly dishonest ways. I think it is time for you either to temper those accusations or to add some specificity, and even some names, to them.

Finally, it strikes me, with respect, as both incorrect and largely a distraction to say that your descriptions of her are starting to be vindicated. The AFJ strikes me a a poor source of serious evaluative information about judges. More importantly, whether or not Sotomayor is brilliant has, in my view, nothing to do with whether she is more brilliant than any other prospective nominee, and relatively little to do with whether she is the "best" nominee for the Court. I doubt one can talk in any useful sense about having any one "best" nominee for the Court, and even if one could the input that went into being the "best" pick surely would not turn solely on brilliance.

Regards, Paul

Posted by: Paul Horwitz | May 14, 2009 9:41:58 AM

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