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Thursday, May 14, 2009

Why President Obama Will Not Appoint Judge Sotomayor

Anyone who has been paying attention knows that Judge Sonia Sotomayor is (was?) a (the?) front-runner for Justice Souter’s Supreme Court seat.  But along came Jeff Rosen, who questioned the choice of Sotomayor on the grounds that (1) she allegedly does not have the intellectual horsepower for the job, and (2) she’s a bully on the bench and difficult to work with.

Rosen’s was truly the blog post that launched a thousand blog posts.  She is brilliant!  She isn't brilliant!  She might be brilliant!  She is a great judge!  She’s an average judge!  Rosen has a conflict of interest and an agenda!  He’s a racist!  He’s sexist!  And so forth.

This is all a sideshow.  Whether Judge Sotomayor is brilliant or not is irrelevant, because she is clearly very, very smart--smart enough to do the job of a Supreme Court Justice.  This is a job that requires great intelligence, but not brilliance; and there is no evidence that true brilliance correlates at all with being a good Supreme Court Justice (whatever your definition of "good").

As for the questions about her temperament, that's also a sideshow. 

The Second Circuit is a uniquely collegial court and one that coddles lawyers.  The fact that she might rub some judges, clerks, or lawyers the wrong way -- even if true -- says absolutely nothing about how she would fare on the Supreme Court.

In truth, Judge Sotomayor is qualified in every way for the Supreme Court. 

But I predict that Obama will not nominate her, and here's why.  It seems to me that if Obama wants to push the Court in a liberal direction, this is his best opportunity to do so.  (Although it is true that he will be replacing one relative liberal with another--and therefore cannot easily move the Court--it does matter who the replacement is.  Heck, otherwise we could just avoid appointing anyone to the seat and just add a vote for the liberal side of every case.)  He has a near filibuster-proof majority in the senate, and even if Justices Stevens and/or Ginsburg step down, who knows what will happen in the next senate election cycle?  To push the Court, he will either want to appoint someone who will articulate an unabashedly liberal vision of constitutional and statutory interpretation or a moderate liberal who is a skilled coalition builder (or at least who can help to blunt a conservative ruling). 

Thus, the question becomes whether Judge Sotomayor is the best person suited for either of these roles.  And the answer, in my opinion, is no.  Judge Sotomayor has not shown herself to be the unabashed liberal lion who could influence the Court, lower courts, lawyers, and law students for generations to come.  Mind you, this has nothing to do with brilliance.  She could very well be brilliant, but she is a moderate liberal in the mold of many Clinton appointees.

Similarly, I have not seen evidence that she has the knack for forming coalitions, swinging judges, or blunting the impact of conservative majorites.  And this has little to do with judicial temperament.  She could be loud on the bench or quiet, reserved or aggressive.  Regardless, she just does not seem to have taken the role of coalition-builder or conservative-opinion-blunter.

To be very clear, none of this is a knock on Judge Sotomayor.  She might make an excellent Supreme Court Justice: smart, insightful, careful, fair, etc.  But I do not think that she is the right person for this particular slot, given the context and circumstances.

And this is why I believe that President Obama will not appoint her.

All of this is by way of prediction rather than recommendation.

Posted by Hillel Levin on May 14, 2009 at 09:41 PM | Permalink


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THIS is why it doesn't pay to make predictions based on Republican logic ;-)

Posted by: Hank Chase | May 27, 2009 9:18:41 PM


True. But that doesn't mean that such a liberal wouldn't have a massive impact on the law in the long run, by influencing lower court judges and a whole generation of lawyers. You know, like Scalia did. Before 2005.

Posted by: Hillel Y. Levin | May 27, 2009 1:22:21 PM

A ferocious liberal would be writing in the majority about as often as Scalia was prior to 2005.

Posted by: Mike | May 27, 2009 12:16:47 PM

Well, it's nice to be called NEW names every once in a while--you know, just to keep it interesting!

Posted by: Hillel Y. Levin | May 26, 2009 9:04:02 PM

Hillel, that is so you -- another conservaretard from the right. May I suggest that you immediately drop whatever you're doing and hurry to get your business cards reprinted.

[It is clear I was kidding, right? I needed to rename myself Sarcastro for this comment, but the name was taken already.]

Posted by: Paul Horwitz | May 26, 2009 8:18:35 PM

Well, another conservaretard from the right gets it wrong. I'm shocked

Posted by: Michael | May 26, 2009 7:12:42 PM

Oh well. This is why I don't get the big bucks.

Posted by: Hillel Y. Levin | May 26, 2009 9:49:21 AM

Oh well you can't win em all.....

Posted by: ChicagoRay | May 26, 2009 9:35:27 AM

Laura Victoria's post, frankly, sounds silly to me. She wants a "woman", suggests one would bring a different perspective and makes an intellectually shallow and insulting observation that RBG has to "deal with ignorance" all by herself. Scalia, Alito, Thomas, Roberts and Kennedy are ignorant? Now Breyer too is ignorant? Please don't drag the debate down to fourth grade level like that. Such a post belongs on the Daily Kos, not here. Also, this talk of womens' "perspective" and diversity is superficial nonsense. Would you accept Edith Jones of the 5th Circuit or, better yet, Janice Rogers Brown, who is both female and African-American (and thus would be a two-for)as a means to achieve balance on the court?. Let's stop all this dishonesty. It's not about gender. It's not about race. It's about ideology. If given a choice, do you really think RGB would NOT choose a white male liberal as a replacement for Souter, one who shares her views, over a woman who disagrees with her views? Hardly. That alone tells you that this "we need gender diversity" rhetoric is pure crap.

Posted by: Kathy | May 19, 2009 9:25:34 AM

Sam: My suggestions for more liberal and better qualified appointees than Sotomayor would be either Pam Karlen or Kathleen Sullivan. Both of these brilliant scholars also have vast real world experience as constitutional litigators and as people. (Karlen's partner is Hispanic). Koh would also be good. It's time that Asians are viewed as a legitimate "minority" even though they achieve higher grades and test scores on average than Hispanics.

I would prefer a woman at this point, and believe that the differences in perspective between women and men are generally much greater than those between a minority and majority man. Moreover, women represent a very high percentage of first rate attorneys in the system (40 percent or more), and obtained that status on straight merit. Thus, RBS sitting there alone smacks of discrimination (though I realize the sample size of nine is a small one). I think Justice Breyer's failure to understand in the Ibuprofen strip-search case that it is different for a 13-year old girl to strip down to her undies than it is for a boy shows the need for greater female perspective, as factual determinations often come into play as we all know. It's cruel and unusual punishment to make RBS deal with this sort of ignorance all by herself.

Posted by: Laura Victoria | May 18, 2009 8:42:26 AM

What makes a court particlarly collegial?

Posted by: Alex | May 17, 2009 12:01:48 AM

Do you have any suggestions for someone (1) qualified and (2) even more liberal than Sotomayer?

Wood is not as far left as Sotomayer, and Sunstein is not, etc. etc. Harald Koh is, but isn't "qualified" in the "female Hispanic" sense.

So I'm just curious who fits the bill. If the argument is "Sotomayer isn't the most liberal person out there that Obama could nominate," I'd say great: who is?

Posted by: AndyK | May 16, 2009 7:44:08 PM

A couple of points:

1. I have absolutely no idea whom the President will pick. A lot of the speculations above (and elsewhere) seem to reflect the speculator's projection of his or her hopes or fears about what the President will be trying to do with this pick. I think that, in a lot of ways, we'll find out what the President values when he makes this selection, but it's not obvious (to me, anyway) ex ante.

2. The concept of influence seems to me a complex one, and one that needs to be unpacked. First of all, as Rick suggests, influence is a two-way street: Why do we think an Obama appointee is going to influence the Reagan/GHWB/GWB appointees any more than those appointees are going to influence the Obama appointee? Second, what makes us think influence is about social skills (at least the kind of social skills that people seem to be talking about here)? I've seen lots of lawyers with bad courtroom manners nonetheless persuade appellate panels, and I've seen somewhat boorish judges have influence over their colleagues because of the force of their ideas (or their facility with doctrinal manipulation, or whatever). By all accounts, Justices Ginsburg and Scalia are exceptionally close personally, but their jurisprudence has diverged rather than converged during the time they've served together on the Supreme Court. Third, and related, do we think there is a reliable way to identify who will have the most influence over colleagues? Fourth, to the extent that influence is associated with social graces, or willingness to compromise with opponents, is that what people think is a proper judicial function? (I don't really have a view on that last question, but I find the discourse of influence interesting in contrast to lots of incantations of the notion of the rule of law.)

Posted by: Sam Bagenstos | May 16, 2009 7:00:29 PM

The problem I have with all of the analyses that suggest a judge can transform the judiciary and society is that they place far too much emphasis on the Court. Clearly, the Supreme Court is relevant to social change, but so are social movements, presidents, voters, and Congress. If these actors are not all engaged in articulating a progressive vision of society, appointing a liberal tiger will not matter -- except for creating great dissents.

PS: The Court has been presented with great progressive theories for decades -- coming from GLBT rights, feminism, critical race theory, etc. The Court has rejected these arguments not because it lacked a smart liberal, but because most of the justices are conservative.

Posted by: Tony Smith | May 16, 2009 7:56:48 AM

Rob, you say that "history has shown that reasonable justices do develop over the longer term when in constant dialogue and conversation with other reasonable peers." What do you mean? What work is "reasonable" doing here? Should the fact that, say, Justice Blackmun did not "develop" -- that is, become more like William Rehnquist -- during his tenure, despite dialogue and conversation with the eminently reasonable Justice Rehnquist, make us think that the former was not "reasonable"?

You also say that you "have a suspicion that Roberts in particular, and Alito too (though I have less of a take on him, frankly, at this point) may thus be people who will develop in some thoughtful ways over time." Again, I would like to hear more here. Justices Roberts and Alito are really smart, and really thoughtful. Why shouldn't we think that, over time, they will help some of their colleagues, like RBG, SGB, etc., to "develop"? What is it that makes you think they are more ripe for, or in need of, development than, say, Judge Sotomayor?

My bet, FWIW, is on Judge Wood. My hope is for Elena Kagan.

Posted by: Rick Garnett | May 15, 2009 9:05:58 PM

JP--I think that's definitely right. I would imagine that Wood and Kagan are high on Obama's list not only because of their obvious intellect and pedigree but also because he has witnessed certain social abilities in them that he thinks would make for a great Justice.

Posted by: Rob Kar | May 15, 2009 7:06:47 PM

Sage assessment -and I agree - Kagan is a better choice, as is Gronholm, perhaps Wardlaw, hey, even Wood. More importantly, Sotomayor's confirm process would be messy and a political downside for Obama. It would be focused on controversy she has caused - her "policy giggles" and her conduct in that firefighters' case, putting front and center for the TV issues Obama does not want the public to focus on. He needs a candidate that will make for a smooth confirm - that's always an assurance of political points and upward approval poll numbers.

Posted by: Balancer | May 15, 2009 4:32:59 PM

Great points, Rob. I think a focus will (correctly) mostly be on Kennedy, but you are absolutely right that coalitions with other conservative Justices are possible. Roberts and Alito, I think, were nominated in part because of a perceived deference to the Executive branch, which was clearly a significant part of Bush the Younger's political agenda. Assuming those tendencies bear out, strategic case selection and framing may lead to decisions supporting Obama's (or the Democratic party's) political agenda. Similar consideration of Thomas' libertarianism, or his unique view of stare decisis, may result in marginally more breakdowns of the traditional liberal/conservative split.

Your point about the complexity of interpersonal dynamics is also well taken. Of course, Obama has known both Kagan and Wood for a long time, and I imagine that this will be a case where the President's own personal experience plays a significant role.

Posted by: JP | May 15, 2009 1:22:32 PM

This is a great discussion. I wanted to add one thought with respect to JP's point, and that is that Obama should--in my view--be thinking not only about Kennedy right now but also about the larger dynamics of the Court in the long run. It is certainly true that as of today, Kennedy is the typical swing vote, but--as Christian Turner's very nice metaphor of the boulders in the river would suggest--history has shown that reasonable justices do develop over the longer term when in constant dialogue and conversation with other reasonable peers. (See O'Connor and Souter.) They also sometimes develop as the collective spirit and dynamics of a Country change, and as they begin to think things through with more experience and information. (See Blackmun on the death penalty). I have a suspicion that Roberts in particular, and Alito too (though I have less of a take on him, frankly, at this point) may thus be people who will develop in some thoughtful ways over time. Scalia seems intent on being a pretty rock-solid and impenetrable boulder, but he also ends up alienating a lot of other justices--even conservative ones--through that approach. And Thomas is an interesting character, because I feel like no one has thus far penetrated into his psyche and developed a genuine and respectful relationship with him. He's not nearly as "dumb" as some people sometimes suggest, and he is a a very funny and charming man who seems to have deep principles. It would be enormously helpful to the deliberations on the Court if more people were to recognize those facts, and build deeper relationships with him.

None of this is to suggest, of course, that any justice could be manipulated toward any liberal (or conservative, as the case may be) purposes: they could not. But I do mean to suggest that the bigger question is who might create and/or inject the most consistent dose of genuine deliberation into the larger dynamics of the Court (sometimes behind the scenes) in the longer term. With respect to *that* question, I think Christian Turner's point about epistemic limits is apt: It really is almost impossible to predict with any high degree of probability. Still, Obama will have to make the best prediction that he can, given the limited evidence, and I do think that Elena Kagan--judging purely from her reputation and without have much personal knowledge myself--may have the highest likelihood of being a truly extraordinary person at this. But I also hasten add that I think all of the candidates would be at least very, very good at this, and that all of them might end up being superstars in this regard. Intepersonal dynamics are--after all--quite complicated. And Thomas--in particular--seems to have been developing a certain resentment towards some areas of the academy and towards certain forms of elitism.

Posted by: Rob Kar | May 15, 2009 12:00:59 PM

I think this is exactly right. Almost everyone else is claiming that this pick won't matter much, because one liberal (or moderate, or raging leftist, or whatever) is being replaced with another. But I have to think that Obama is focused on the possibility of causing just a few more of the Court's 5-4 decisions to be decided in favor of the "liberal" side. For the most part, this means appointing someone likely to influence Kennedy. (I'm not suggesting that Kennedy is a pushover. Persuading him to switch sides just one or two more times per year--whether by argument or compromise--would have a significant impact on the law, just because of the nature of those 5-4 decisions.) As Rob notes, Kagan has a reputation for this kind of coalition building.

Posted by: JP | May 15, 2009 10:42:39 AM

Rob-- Thanks for the thoughtful post.

Christian-- Interesting points. I don't really think that I disagree with you all that much. Judge Sotomayor MIGHT move the Court more than anyone else. But we don't have much reason to think so; or, to put it more finely, we don't have much reason to think that Obama will think so. That's the point. Since we have limited data, we do the best we can with what we have.

As for the comparison to the Souter, I really think it is inapt. No one knew who Souter was; he had never been under the microscope; and he basically had one conservative Republican voucher for him. Judge Sotomayor has been in the fishbowl of the Second Circuit for quite some time. Indeed, the stealth or unpredictable nominee is fast becoming a thing of the past--at least when Presidents have strong support in the Senate. Since Souter, every judge who has been appointed has been more-or-less exactly what we thought he or she would be.

Finally, I could not agree with you more about Pam Karlan (though I think there are some other super candidates who fit the bill as well). I'd love to see her on the Court (even as I disagree with many of what I take to be her views). I also agree that we can't predict that she would swing the Court further to left. Nevertheless, I do think that she would galvanize a generation of lawyers and law students in a way that no one else on the "liberal" side of the Court currently does--and in a way that we have no reason to think that Judge Sotomayor would.

Posted by: Hillel Y. Levin | May 15, 2009 10:17:24 AM

Very much agree. Great post.

Posted by: Jason | May 15, 2009 10:15:10 AM

Hi Hillel - thought-provoking post. I have no idea, really, who Obama will appoint, but I do think trying to predict an otherwise qualified candidate's impact on the direction of the court is very, very difficult. Souter is only the most obvious example of the difficulty of doing so. (As an aside, I think Jeff Rosen's piece is best ignored at this point. Glenn Greenwald has, in my view, said all that needs to be said about it: http://www.salon.com/opinion/greenwald/2009/05/05/tnr/index.html and http://www.salon.com/opinion/greenwald/2009/05/07/rosen/index.html )

Personally, I'd love to see Pam Karlan appointed. I'd love to watch her confirmation hearings, and I'd love reading her opinions. But I don't have any idea, if I'm honest with myself, whether doing so would move the court further left than appointing Sotomayor. (During my clerkship, "SS" was probably the judge we sat with who most impressed me. I've always thought she was a likely SC pick.)

The problem is a little like the following, vaguely ridiculous, problem: Suppose you have nine boulders of various shapes, and you just sort of toss them into a fast flowing river. The question is how, over time, the river will flow with the boulders in place. Every now and then they may bump into each other, move around and deflect the flow in combination with each other, lose edges from collision, and just gradually erode and change shape in unpredictable ways. One boulder is taken out, and we want to throw a new one in. I want the river to take a certain shape: what kind of boulder should I select? This is a very difficult problem. Maybe if I could find just the right shape: flat, broad bottom, no rough edges, then I at least could be relatively sure how the water will move around it and that it's likely not to move much.

I just don't think such "boulders" are common on the left. Hard-core textualists and/or originalists with a conservative bent are probably as close as you'll find to a sure bet. (I know these two types aren't at all the same and that they have subcategories - but in the political actuality of the Court, I think they combine to describe a type that is unusually predictable... but I'm not ready to defend that - and don't need to for this argument.) In any event, would the court now be further left if one could have somehow found and appointed, and I'm skeptical one could have done so, a liberal Scalia instead of a pragmatist like Breyer? Would a liberal Scalia have been able to build coalitions with Kennedy and O'Connor? Would Hamdi have come out the same way? I have absolutely no idea. We can try to select for a coalition builder - and maybe Kagan would fit the bill. But figuring out who among an extremely qualified group will be most able to operate in politically smart ways, over a decade or more, among a group of nine very smart people would appear to be a nearly impossible task, more so than predicting how a smart and curious person might deal with constitutional, statutory, and social issues that will arise ten or twenty years hence. This is even setting aside that Obama, whom I view as a left-leaning techno-pragamatist (influenced in part by seeing what I want to see no doubt), may actually *want* to appoint a left-leaning pragmatist.

Last observation, the "unique[] collegial[ity]" you accurately ascribe to the 2d Circuit would seem to cut against the idea that we can predict SS will be a moderate on the SC. I'd be more comfortable inferring that if strident dissents and concurrence were the norm. Judicial behavior when dealing as a court of last resort on matters taken up by choice is, I think, quite different from ordinary court of appeals judging - even if collegiality weren't the norm on the court of appeals.

Posted by: Christian Turner | May 15, 2009 10:08:52 AM

I just wanted to add my quick two cents, which is that this all sounds very reasonable.

I think you're right, for example, that if Obama wants a "real" liberal lion(ess), rather than a more central leaning judge, he will pick someone besides Judge Sotomayor. I'm a tad bit less sure on the coalition-building part, but Elena Kagan does seem to have a *particularly* extraordinary reputation on that score.

I also agree that all of the people he is looking at are pretty extraordinary in slightly different ways, and that each is certainly more than competent. So this really will come down to what combination of traits he decides he wants right now, given all of the many variables that are in play.

Posted by: Rob Kar | May 14, 2009 11:35:43 PM

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