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Tuesday, May 05, 2009

On the Brilliance of People like Judge Sonia Sotomayor and Barack Obama

Let me start with the obvious conclusion that anyone would draw if they were to get to know Judge Sotomayor and her work both intimately and deeply: she is an absolutely brilliant jurist and an absolutely brilliant person.  Having clerked for her, worked very closely with her over the course of a year, and then known her well for more than a decade, I have a very good take on who she is both as a judge and as a person.  Ordinarily, I would not weigh in on things like this, but, given some of the spurious comments that have been emerging from people who are less familiar with her, I feel a need to set the record straight.


I count myself privileged to have worked closely with some of the very best minds in the world, in both law (at Yale Law School and in the legal academy) and philosophy (at both Harvard College and the University of Michigan’s graduate school, which was widely considered the best department in ethics in the world when I was there.)  Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter.  (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.)  Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this.  And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are—quite frankly—pedantic in comparison. 


Indeed, Judge Sotomayor reminds me in some ways of Obama himself in that she has surprising dimensions to her brilliance, which are completely original to her.  She knows how to pull out the best in people with whom she works, how to motivate people through her words and conduct, and how to forge deep and abiding relationships with people from all walks of life, and from all political stripes and ideologies.  She is courageous and fearless, but non-ideological, and wholly unimpressed by the kind of pomp and false theoretical excess that can sometimes make one look smarter in the short term but only at the expense of distorting the underlying issues.  One measure of the extraordinary judgment she has is reflected in her incredible life story: she moved unerringly, and without any hint of doubt or hesitation, from the Bronxdale Public Housing Projects to graduating summa cum laude from  Princeton, where she received the Pynes Prize (for their top graduate), and then to Yale Law School, the DA’s office, and the Second Circuit Court of Appeals.  The force of character that it takes to live such a life should never be underestimated: we have no other person on the bench with her experience and intellect who has come from these beginnings and who has developed with such clarity of purpose and vision.  The federal judiciary houses a number of intellectual giants, but, if we are honest with ourselves, we will have to admit that almost none of them would have made it to where they are from her starting point.  The temptations to take other paths would have been far too strong, and the absence of hope too stultifying.  Because of this, she also has the power to lift people up, and inspire.  Her story can bring unique hope to many for whom there is only despair; can help heal some of the deepest internal crises of faith that people struggling in this country have had to face; and can establish the fact (about which there is still far too much unwarranted skepticism) that brilliance comes in many surprising forms.  She can also give a concrete face to the American promise, and what we stand for as a country, and to the kind of change that will bring us directly back to our core human values.


Like Obama, there is thus something special and incomparable about this woman—though it lies in qualities that are not always seen by those who do not know just where to look.  In my view, the level of conviction and independence of mind that Judge Sotomayor displays is absolutely essential to the best work of a Supreme Court Justice, but it is in short demand, and rarely have we seen it on such full display in the federal judiciary. 


Given these facts, I should probably be less surprised than I am to see some of the initial reactions to Judge Sotomayor mirroring early reactions to Obama’s presidential candidacy.  Early in the last primary season, I remember a number of people saying that Obama was not “as smart” as Hillary Clinton—at least until people began to catch onto his sheer genius at things like (1) reframing seemingly intractable issues in ways that might move us forward and out of stale debates; (2) identifying and articulating the core values of social practices in ways in ways that people who were once skeptical find compelling; (3) charitably understanding the fullest range of seemingly diverse positions, and the kinds of concerns and warranted hopes that lead to their articulation; and (4) maintaining humility, and a sense of calm and perseverance, in the face of seemingly insurmountable difficulties.  (These are rare forms of brilliance, which Judge Sotomayor also has in spades—but that very few on the federal judiciary can claim for themselves.  They are also not qualities that one will typically see if one is a law clerk for another judge who receives suggested revisions on one’s work from another judge; or if one is an attorney, who is less than prepared before a judge who has particularly exacting standards of excellence.)  I also remember a number of people talking about how Obama rubbed senior colleagues in Congress the wrong way, when he—like Judge Sotomayor—displayed his native brilliance from the very start of his tenure in some ways that others found unsettling.  And I remember how some on the left expressed concern when Obama began to break the mold of democratic thinking, by drawing on his independent but genuine insights into how people work and mobilize in socially productive ways not only in urban but also in rural settings, to help push our collective thinking on matters of genuine importance.  I will confess that I myself did not see the full range of Obama’s brilliance at first, and that these things only began to become clearer to me after hearing his speech in Iowa and after Ted Kennedy came out letting people know that there is something special about the man.  But whereas Obama had an extended campaign period in which to introduce himself to people, and to overcome some of the difficult but inevitable first impressions that arise with brilliance in this form, Judge Sotomayor is being maligned by people who do not know her, and who may not be able to see of all of her qualities from afar.  I am—of course—no Ted Kennedy, but I do know what Senator Kennedy was talking about with regard to Obama, and I see special qualities of precisely this caliber not only in Obama but also in Judge Sotomayor.


I suspect that some people on the left may be concerned about Judge Sotomayor because she may not be the “liberal antidote to Justice Scalia” that some have desired.  But this is no indictment of her intelligence, but rather of their imagination.  Getting at the truth in the law, and beginning to change the tone on the Court, will not involve concocting a distinct but overly general, and ultimately erroneous, theory of how things like meaning or interpretation work to counter Justice Scalia’s.  Nor will it involve the development of ideas, or forms of expression, that increase the mutual sense of alienation and resentment among Americans in both parties toward one another.  In my view, the standard liberal expectations for a great jurist are thus behind the times in many ways, and it is a testament to Judge Sotomayor that she would much more likely break the mold for such expectations and bring us all forward in the process.  The time for endless tit-for-tats on the Court, as in politics, is coming to an end, and Judge Sotomayor would be the ideal justice to help move the Court into a newer, saner, more thoughtful, and more unified era.  Indeed, she is perhaps uniquely qualified to do so. 


To give you a sense of what I mean by some of the rare dimensions to Judge Sotomayor’s brilliance, let me quote several passages of a description I once wrote up of her in 2002, which begin to capture some of the social, emotional, and procedural brilliance that she has.  After describing the judge’s tireless work ethic, and the sheer quantity of work she was able to produce, I wrote: “The ultimate secret of the judge’s success lay not in the quantity, however, but rather in the quality of the work she inspired. The judge made it positively enjoyable to struggle to reach better legal resolutions together, due to another rare and surprising dimension to her brilliance.  Although we had come to the clerkship with very different backgrounds, strengths, and temperaments, the judge seemed to identify them almost immediately, to cultivate them and to create an atmosphere in which we each felt respected and as though we had something positive to contribute, coming from our own particular angle.  We were some of the strangest of bedfellows, but the judge orchestrated an environment in which we all forged very real and lasting friendships with one another and felt comfortable deliberating with one another and engaging with one another’s ideas.  We discussed each and every case with genuine vigor and concern that year, and the judge’s confidence gave us the confidence to push and develop one another’s thoughts to their limits.  Have no doubt: the judge knew when to take the lead and when to rein us in.  But she also helped us to see that we could have important ideas that, with the appropriate development, would help to push the envelope of the law and help clarify or harmonize legal doctrines in beneficial ways.  The judge thereby taught us the brilliance that goes with creating an environment in which deliberation is free from insecurity, and reasoning is vibrant and sincere.  The judge also showed us how valuable such a process can be, and how much it can add to one’s ability to perceive better, more probing and more honest answers to legal questions.  With regard to her peers on the Court, the judge took the same basic approach, both at oral argument and in her interoffice correspondences.  She thereby enlivened and enriched the tenor of the deliberations of the Court more generally.  This is, without doubt, one highly tangible and pervasive way in which the judge’s presence has already changed the Second Circuit Court of Appeals, and has helped produce a better jurisprudence within the Circuit.”


I then continued: “The judge’s ability to bring out and draw upon the best in others and her confidence and perseverance are not ultimately unrelated qualities in her.  It is the judge’s confidence that allows her never to be afraid or jealous of a thought that can help improve her reasoning or her views on things; and it is, in turn, her ability to identify and nourish such thinking, and to listen to sincere challenges to her own thinking, that allows her confidence to hit its mark and track the truth so unerringly.  The judge is, in fact, extraordinarily generous in her crediting of others.  During her induction speech for the Court of Appeals, in a room filled with senators, federal judges and other persons of relative power and social status, the judge went to great lengths to thank not only President Clinton, the senators, her peers and her legal mentors for helping her attain her numerous judicial accomplishments but also, in equal detail, the fed cap employees who had kept the hallways and chambers clean, the cafeteria staff, the security officers who had watched the doors to the courthouse and the numerous other persons who were part of the vast web of relations upon which her work had in fact depended from day to day.  She was not afraid to acknowledge the genuine role that each person had played in allowing her to succeed as a judge, regardless of the person’s perceived standing in the room, and her heartfelt expressions of gratitude had the power to motivate.  The judge also spoke of her mother, and of how her mother had worked extra hours as a nurse in a methadone clinic to save up enough money to buy the judge and her brother the one set of Encyclopedia Britannicas in the Bronxdale Public Housing Projects, where the judge had been raised; the judge spoke of her committed and lasting friendship with Theresa, her secretary, who has enriched all of our lives and has helped cement all of our relations with one another; and the judge spoke of family and love, including that of her mother for the man her mother would marry that night.  Anyone seeing the amount of goodwill toward the judge that filled that room, arising from every type of person with every type of background, could not help but get a sense of the very real power that the judge had invoked through her sheer force of character.  One began to get the sense that, without even trying, the judge had created and could move a small but silent army.  What makes the judge’s courage really shine, then, is that it involves the courage not only to express views that are worthy of consideration but also to listen, to be open to reason and to validate and acknowledge contributions that others can make to her own development and thinking.  We are all better for having a person with her type of character in a position of power.”   


Lastly, but importantly, Judge Sotomayor is a genuinely good person, with an enormous heart.  She is incredibly skilled on levels that push every imaginable envelope, and I really do hope that people will get to know who she is before taking the easy route of discrediting that which they do not yet understand. 


Professor Kar is a Professor of Law and Philosophy, and the Thomas Mengler Faculty Scholar, at the University of Illinois in Urbana-Champaign, beginning in the Fall of 2009.

Posted by Rob Kar on May 5, 2009 at 08:59 PM in Judicial Process | Permalink


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Posted by: Timoti Sanchez | Sep 29, 2009 5:07:26 PM

Professor Kar,

Thank you for a brilliant endorsement of Judge Sotomayor. Your essay was the best articulation of what makes Judge Sotomayor so brilliant--her "specialness" really came out in your description of her, and addressed much of the nonsense out there.

Thank you for taking the time to write such an intelligent endorsement--something that unfortunately was missing from the main media outlets.

I wish Judge Sotomayor the best. I can't explain how much she has inspired me. I guess she has had the same affect on me, that many have felt for Pres. Obama.


Posted by: SHeilah Fernandez | Jun 5, 2009 12:53:34 PM

This is an anonymous comment....at least to the level afforded by the internet.
I am a "conservative" independant politically.

Simple question:

Q: When will racism and racial division end?

A: When it ceases to be important.

Bottom line: Does anyone ask what the overall racial mix of the executives or workers of the companies in the their 401K plan is if it makes money?

Does any union member ask what the racial mix of the community which employs them is if their contract is supported?

Let all of us move beyone the female, gay, white, black, latino etc. etc monicker and move toward what matters: do you do what you do well at a competitive price?

If you do, fine. If you don't move on.

As a white male, I am getting tired of the drumbeat of racism.

Pretty soon, I will start demanding my rights....just because I can't play basketball I am denied a professional basketball contract. Just beacause I don't have the ability to write songs, I can't get a million dollar music contract. On and on.

I want our supreme court justices to be LEGAL experts. I don't care who they are as long as they don't care who or what I am. Just interpret the LAW.

If that isn't what LAW is then let's be honest. Either "Power" rules or "Rules" empower. Then be blind and stop whining.

Posted by: John Doe | May 26, 2009 9:31:02 PM

Wow! All of you must be lawyers because you really enjoy hearing yourselves speak. Didn't you learn in law school to be concise. I hope that most of you are not Judge's as Judge's are supposed to do more listening than speaking. Sotomayor speaks too much letting everyone know that her opinions are definded by her experiences, gender and her nationality as are other Judges'. The law should be defind by application and NOT by interpretation as I heard the President mention in his nomination. JUDGE'S are to apply the law as it stands and not morph it into something they deem it to be. That would be making policy from the bench. Oh wait! I beleive that was the comment that got Sotomayor in the limelight in the first place. She could come to a better conclusion than a white male who hasn't lived the circumstances. Which is basically saying that she does not beleive that a "white male" would be able to apply the law to a latino female. In turn what she is also saying is that she does not beleive that she herself would be able to apply the law as in a recent slip opinion, Ashcroft v. Iqbal because she is not a Pakistani Muslim. Oh but I am sure she can still relate because she is a Lation female in a man's world. God help us.

Posted by: AlphaAmerican | May 26, 2009 1:11:21 PM

Since when does *anyone* ever describe white men using those terms?

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.

Then again, Posner and Easterbrook are pretty obscure guys who rarely get out much.

You mentioned uppity brown skinned female federal judges. Well, there is Janice R. Brown who was appointed by George W. Bush in 2005. Remember all her opponents thought she was the worst thing in the world when Bush nominated her. Here are some of her judicial demeanor comments from the AFJ:

"She has an excellent demeanor."
"She is very pleasant. She has an ideal demeanor. She seems to have a sense of humor."

I'm not cherry-picking the Janice Rogers Brown judicial demeanor comments because they are all positive.

Posted by: anymouse | May 13, 2009 12:55:45 PM

Interrobang; You are certainly entitled your strange opinion. Take a peek at some of the other judges in the AFJ and you'll see your theory is pretty weak.

I don't care one way or another about the judge; however, this post by Rob Kar is rather embarrassing. It sounds like a fan letter to the Jonas Brothers. I also think his two subsequent posts about the judge with comments disabled are pretty bad.

Posted by: anymouse | May 13, 2009 10:13:32 AM

"If Sotomayor were a white man, the judicial temperment comments would most likely be unremarkable, and certainly not indicating aggressiveness or anger. But what's perfectly normal in a white man is downright terrifying in a brown woman."


If public debate is ever going to get anywhere then we have to permit criticism against "brown women" judges. They're not above reproach. If a certain judge doesn't 'play well with others' then that fact needs to be discussed. Insinuating that the critics are racist, sexist, or whatever, is just an ad hominem attack that doesn't address any substantive points.

To put it another way: stop shooting the messengers and respond to the messengers' claims. If they're truly as prejudiced as you say, then your substantive replies will expose them for what they are.

Posted by: Aaron | May 12, 2009 3:19:45 PM

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.
I don't know about discourse analysts, but some of us like to check out our information before making claims.

Posted by: D | May 12, 2009 2:51:02 PM

Anymouse probably has a point, but not in the way Anymouse thinks Anymouse does. If Sotomayor were a white man, the judicial temperment comments would most likely be unremarkable, and certainly not indicating aggressiveness or anger. But what's perfectly normal in a white man is downright terrifying in a brown woman. 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? Or, more specifically, since when is calling a white man "outspoken" and "overly aggressive" an insult?

I don't know about the rest of you folks, but this discourse analyst is reading an awful lot of "uppity (brown) woman" in those comments.

Posted by: Interrobang | May 12, 2009 1:39:01 PM

I second the last comment--isn't this blog meant to be a place for open exchange of ideas? Why is one person allowed to post his defense of Judge Sotomayor (including such neutral terms as 'swiftboating'), but shut off any commentary on it?
Personally, I don't think Rob's glowing personal reviews of the Judge belong here in the first place (I think they are far more suited for his own blog), but if you are going to put them up here, then at the least people should be able to comment on it. Particularly since the Almanac of the Federal Judiciary page on the Judge currently avaiable on Westlaw is significantly more negative than the one Rob relied on.

Posted by: D | May 11, 2009 4:53:07 PM

I noticed you posted something on Sunday May 10, 2009 from a 2000 Almanac of the Federal Judiciary about Judge Sotomayor.

Why leave the comments disabled?

Posted by: Anymouse | May 11, 2009 3:40:43 PM

From the Almanac of the Federal Judiciary Vol. 2 on Judge Sotomayor:

Legal Ability:

"She is very good. She is bright."
"She is a good judge."
"She is very smart."
"She is frighteningly smart. She is intellectually tough."
"She is very intelligent."
"She is a good judge, but not quite as smart as she thinks she is."
"She has a very good commonsense approach to the law."
"She looks at the practical issues."
"She is smart. She is not as intellectual as some."
"She is good. She is an exceptional judge overall"
"It is fair to say she has done better than many people predicted. I'd say she is in the bottom of this court - but the competition is pretty stiff."
"She is one of the few civil rights lawyers to be appointed to the court. In her heart I think she still thinks from the bottom up. When you argue before her you have the sense she is waiting for you to give her a reason to win. If you don't give it, she will rule against you."
"I'm not too impressed with her. She is bright, but doesn't always get the facts."

Judicial Temperament:

"She is a terror on the bench."
"She is very outspoken."
"She can be difficult."
"She is temperamental and excitable. She seems angry."
"She is overly aggressive - not very judicial. She does not always have a very good temperament."
"She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts."
"She abuses lawyers."
"She is nasty to lawyers. She doesn't understand their role in the system - as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she doesn't like."

The judicial temperament comments aren't exactly glowing. If she were a white male judge, she'd wouldn't even be mentioned.

Posted by: Anymouse | May 9, 2009 7:46:54 PM

I've seen a smattering of comments about Judge Sotomayor being "nasty" to lawers when she was a district court judge. Having clerked for a female district court judge myself, I think you have to look at these comments from the perspective of what a judge has to do to control the courtroom. A woman judge (especially of Judge Sotomayor's generation and older) just has to stand up and roar from time to time in order to make sure that she's respected. So, I'm more inclined to think more highly of Judge Sotomayor's capacities after hearing these rumors, not less. Also, I doubt that her perceived rudeness or bullying really runs all that deep as a character trait. If she was a bully, there's no way she'd have clerks writing adoring posts like this one!

Posted by: commentator | May 8, 2009 10:32:40 AM

I want to thank people for reading, and for the helpful input and questions. I don't plan to jump in and respond to all of the comments people might make, but I thought I'd say a few things on the comments thus far.

1. In response to Orin Kerr and some other posters' queries concerning opinions by Judge Sotomayor, I want to be very careful not to set myself up as an authority on what opinions best characterize her judicial philosophy. She has a seventeen or so year record, which is open to public view, and I would want to go back and read it all thoroughly before claiming any such expertise. But I can say some less formal things that may be helpful. As we all know, most Court of Appeals cases (including those that reach a final published opinion) end up being relatively run-of-the-mill, and reflect the edits and contributions of several judges. Run of the mill cases aren't the best indicators of how someone would write on the issues typically facing the Supreme Court. I thus think it would be a better place to start to look at some of her dissents and/or concurrences (as one poster above mentioned) in order to get a sense of how she thinks things through in her own voice and on issues that may be more contentious. You might try, for example: Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006) (dissent); Croll v. Croll, 229 F.3d 133 (2d Cir. 2000) (dissent); Koehler v. Bank of Bermuda, 229 F.3d 187 (2d Cir. 2000) (dissent); and Shi Liang Lin v. U.S. Dept of Justice, 494 F.3d 296 (2d Cir. 2007). Other opinoins that might be worth reading include: Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002) and In re Milleniumm Seacarriers, Inc., 419 F.3d 83 (2d Cir. 2005). But as I said before, I make no claim that these are the very best opinions she has written, after a thorough read of all of them. (Also: In my post, I was trying to describe certain other qualities that won't necessarily show up in written opinons, but that would likely be important in making her an influential justice behind the scenes. This doesn't mean you shouldn't be able to get a measure of her mind from some of her opinions; but it does mean that she has other important qualities as well.)

2. To Andy: I appreciate your question as to whether I know President Obama personally, and the answer is no. The comparison was not meant to suggest that Sotomayor and Obama have the same personal qualities, but rather to point out that each has some very special qualities that can easily be dismissed before one spends time really seeing what is distinctive about them. With regard to Obama, my view that he has some of the surprising forms of brilliance that I mentioned above come not from a lack of information but rather from listening closely to him for some time, and hearing him say quite a few things that have pushed people to think about things differently. Some quick examples: his articulation in his presidential acceptance speech of distinctive indicators for economic prosperity based on how the middle class is doing (rather than in terms of brute GDP) (which statement allowed him to champion markets and capitalism while still challenging certain conservative takes on what makes them flourish); his statement that "dropping out of high school is no longer an option: you're not just failing yourself, you're failing your country" (which--to my mind--expressed criticism but in a way that simultaneously showed how much he values many people who may have trouble seeing their own value); his understanding of how to organize people at the local level, so as to overcome a growing skepticism many have felt about the power of people to influence government; his refusal to dismiss the power of religious organizations to build important social capital, even though many people on the left have been so dismissive; his ability to point out that, despite what would seem to be his rather prominent outsider status, his story could only really happen in America, thus making him an epitome in some ways of this Country's spirit; his ability to talk directly to people in Islamic countries in ways that might soften some of the appeal to them of radicalism and terrorism; and so on. I have, in other words, been a careful observer of a pattern of thoughts like these, and I've now seen enough to recognize a mind that is working on a distinctive level, and that has the capacity to bring genuinely fresh insights to the table. I recognize, of course, that some people might disagree with my assessment of Obama's brilliance, but I stand by that assessment, based on observations like these. (And of course I'm only listing a few.)

The other main point to the comparison was just to observe how many people were quick to dismiss Obama before they had a chance to get to know him. I saw a similar thing happening with Judge Sotomayor, and wanted to make sure people knew that there's something very special about her before doing so.

3. One person suggested that my descriptions are over the top. I suppose my response is as follows. Either there are genuinely brilliant people in the world, or there are not. If there are--and I happen to believe that there are--then a description like the one I penned would presumably apply to them (although many of the details would naturally be different). Judge Sotomayor is in that class, but I have no objection if you would prefer to use other adjectives to describe people like this.

I should also remind people that the Pyne Prize at Princeton (which she received) is the highest general academic award they give out each year--usually to one, sometimes two people, as I understand things. When someone is the best out of some 1300+ Princeton undergraduates in a given year, there's a good chance that there's something special about the person, wouldn't you think? How credible is it really that such a person is "not that smart"? But it is also true that Judge Sotomayor comes off as who she is: a Puerto Rican woman, accent and all. And I have seen people dismiss her, and her style, very quickly on this basis, without really knowing enough about her. I sense some of this in the discussions of "judicial temperament," which I find highly reminscent of descriptions I've heard of Jewish lawyers at the inception of the M&A boom, when white shoe firms declined to take much of this work because it was not "gentlemanly" enough for them, thus allowing places like Wachtell to really take off. At that time, the norms for appropriate "legal temperament" were largely a reflection of certain arbitrary cultural facts, which included the exclusion of many incredibly bright Jewish lawyers who have now begun to define more of what the culture of litigation looks like. And so the Second Circuit Court of Appeals had never had a Puerto Rican woman from the projects with Judge Sotomayor's personality before she joined the court over a decade ago. Good, it's time for a change on this score. (I should also mention that at the time, Judge Sotomayor was more than a decade younger than the next youngest judge, and much, much younger than many of the others. One shouldn't forget that when comparing her to her 70-year-old counterparts at the time.)

In any event, I happen to believe that once we start talking about truly brilliant people, it no longer makes sense to compare them on a single scale in terms of their brute intelligence. What tends to differ more is the *character* of their mind, and how it shows up in their work and in their lives. (Are they more creative or more analytical? Are there surprising subtleties and nuances to their reasoning, or are they better able to make connections with bold impact? Are they perfectionistic and prone to self-doubt, or are they courageous and willing to take on important challenges. And so on.) From what I can tell, Obama has generated a short list of people almost all of whom deserve our respect as truly gifted individuals, who fall into the "brilliant" category I've been talking about. Hence, he will be able to pick from among these the one that best exercises the type of judgment and quality of thinking that he values. This may or may not be Judge Sotomayor, but to say that Judge Sotomayor is "not that smart", or is not one to be considered in this class, is just silly.

4. Lastly, in response to one anonymous poster who says that I have gone too far in "bashing" liberals who would want to see more of a "real progressive" on the Court in the mold of Brennan or Marshall, I want to thank you for letting me know that my post came off that way, and giving me the opportunity to disambiguate my post a bit. I have no problem at all with people who would prefer someone who is more radically left-leaning, but I *was* concerned that some people who may want such a justice may be spreading false rumors about Judge Sotomayor in part to push for such an appointment. There is plenty of room for debate over what *type* of Justice Obama should nominate, but I hope the debate will take place in good faith. Your own view--namely, that you recognize Judge Sotomayor is brilliant, but would still rather see someone more radically left--is just the sort of good faith argument I'm talking about and would applaud. So thank you for your comment.

5. A quick procedural point: I'm not going to monitor this post regularly, but I may remove comments that are overly uncivil or snarky.

Posted by: Rob_Kar | May 7, 2009 5:54:15 PM

"No one genuinely smarter ... surprising dimensions to her brilliance ..." This is satire, right? If this were a letter of recommendation, this would be dismissed as puffery. Yes, the word "brilliant" or "brilliance" appears 13 times, but there are ZERO specifics as to her legal expertise. Sure, she has a great life story, is a wonderful person, brought out the best in her clerks etc etc -- but none of this speaks to her qualifications for the Supreme Court.

Posted by: Charles | May 7, 2009 9:05:25 AM

she reminds me of obama with "surprising dimensions to her brilliance." the author reminds me of millions of deluded, kool-aid drinking sycophants who confuse a certain glibness with brilliance. so sad.

Posted by: jon | May 6, 2009 11:42:04 PM

I enjoyed reading this post. I believe it is important to counter Rosen's rumor-driven meme that Sotomayor is somehow intellectually deficient. There seems to be little evidence for the claim beyond rumors from anonymous sources and her record (e.g., having graduated summa from Princeton) points to precisely the opposite conclusion.

But, I think that you are off base when you go on to bash those of us who would like to see a real progressive appointed to the Court. In particular, you argue as follows: "I suspect that some people on the left may be concerned about Judge Sotomayor because she may not be the “liberal antidote to Justice Scalia” that some have desired. But this is no indictment of her intelligence, but rather of their imagination." Progressives who would like to see an actual progressive on the court are not "unimaginative." We now have at least 2 (and, based on the early work of Alito and Roberts, likely 4) extremely hard right conservatives on the Court. I don't think the answer is a liberal mirror-image of Scalia but I would certainly like to see Obama appoint Justices in the mold of a Brennan or a Marshall. Today's "liberal" members would have been moderate-to-conservative Justices on many matters in the Warran era. There is nothing wrong with progressives (who, last I checked, make up a much larger percentage of the electorate than Scalia-esq conservatives) wanting an actual, you know, progressive for the Court.

I have no doubt about Sotomayor's brilliance. And, I think the unsubstantiated rumors knocking her are awful. But, I'll still be disappointed if she gets the nod. The last thing I want to see is another Breyer.

Posted by: anon | May 6, 2009 9:23:30 PM

As a district court judge, Judge Sotomayor was unfailingly nasty and terribly hard on the lawyers in her court both on a long trial I worked on before her and, in a different case, on a summary judgment argument. She came off as an ill-tempered bully. In fact, I think she ruled as she did on the summary judgment motion to punish the lawyers on one side (who admittedly weren't very good); her convoluted 53 page opinion on a simple copyright matter was unanimously reversed on appeal.

Just conveying my experience with this judge. Maybe it's not relevant and she'll play nice with her fellow Justices if she is nominated.

Posted by: Kate | May 6, 2009 9:22:57 PM

Aaron. This post belies your spin -- it does a lot more than focus on her upbringing.

Posted by: Joe | May 6, 2009 8:27:45 PM

On the other hand, from a practitioner's point of view, hell is a judge who's running for the Supreme Court. And she's been running a long time.

Posted by: Arbutus | May 6, 2009 3:51:53 PM

It seems like the overwhelming majority of Sotomayor supporters focus on her upbringing when making her case for nomination. I don't know whether she's good or bad, but in my view a judge's upbringing is totally irrelevant as to whether he or she should be appointed to the Court.

I want the best judge possible, and in my experience it just doesn't seem to be the case that the poorer a judge's childhood, the better he or she is at being a judge.

Posted by: Aaron | May 6, 2009 3:32:00 PM

I presume this post is a satire, poking fun at the obsequious ex-clerks who purport to think that their judge (or Justice) is the most wonderful person who has ever lived or ever will live?

Posted by: SB | May 6, 2009 3:11:43 PM

Jeff -- yes, that's what i mean -- uninformed about Pres. Obama on a *personal* level (i don't mean anything more than that). more generally, i just think it's a bit weird to make comparisons of this type. It's like a conservative stating a jurist he personally knew and worked for was so great because the jurist was just like Ronald Reagan. perhaps this strikes only me as odd, but usually when i talk about how great someone is that I personally know, i don't invoke some national icon i have never met. ("My mother is great! She is just like Rosa Parks!") Strikes me as strange to compare someone I know personally with someone whom I have never met...but again, maybe that's just my quirk....

Posted by: andy | May 6, 2009 1:49:45 PM

99.999% of the population are uninformed? By uninformed, you mean that they haven't had a series of personal interactions with the President?

Posted by: Jeff | May 6, 2009 10:27:30 AM

Thanks for this Rob- it's very nice and I'm pleased to see it.

Posted by: Matt | May 6, 2009 10:05:48 AM

The force of this post seems to be diminished by the comparisons to Obama.....Rob, do you have many personal interactions with Pres. Obama? I imagine that, like 99.999% of the population, your impressions of Pres. Obama are uninformed (although they may be ultimately proven correct, as Obama is only ~100 days into his presidency )....this makes me worry about your conclusions regarding Judge Sotomayor. Is it enough that people fawn over Judge Sotomayor to establish her magnificence in your eyes? I guess this post comes across as so over-the-top that I am not sure what to make of it. (For whatever it's worth, I have a positive impression of Judge Sotomayor and particularly liked her dissent in Koehler, 229 F.3d at 190 (Sotomayer, J., dissenting).)

Posted by: andy | May 6, 2009 2:46:04 AM

Thanks, Rob. Are there any particular opinions of Judge Sotomayor that you recommend reading to get a sense of this first-hand?

Posted by: Orin Kerr | May 5, 2009 11:23:45 PM

"The force of character that it takes to live such a life should never be underestimated: we have no other person on the bench with her experience and intellect who has come from these beginnings and who has developed with such clarity of purpose and vision."

Except for Justice Thomas, of course.

Posted by: Thomas | May 5, 2009 10:07:39 PM

Check out her dissents in Hankins v. Lyght and Croll v. Croll. There she speaks in her own voice, unencumbered by other members of the Circuit.

Posted by: anon | May 5, 2009 9:49:00 PM

Professor Kar,

I've heard some conflicting things about the judge on her opinions, and I'm glad to hear your perspective. Would you mind directing me to an opinion of hers that you think is especially good?


Posted by: anon | May 5, 2009 9:17:57 PM

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