Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"

Latest Analyis: Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"

Jeffrey Rosen has responded to the surge of criticism regarding his harsh "evaluation" of Judge Sonia Sotomayor. Although I criticized Rosen on many grounds, my critique of his misrepresentation of a footnote authored by Judge Ralph Winter has received a lot of attention on this blog and elsewhere.

In his original essay, Rosen contends that Winter's footnote accuses Sotomayor of misleading lawyers regarding the status of legal doctrine in the Second Circuit. But nothing in the footnote even vaguely supports Rosen's assertion. In fact, Professor Michael Dorf, a highly respected constitutional law scholar, concludes that Rosen's analysis of the footnote lacks merit. Dorf, who has written the only analysis I have seen that seeks to rehabilitate Rosen, contends that:

[A]s Darren Hutchinson nicely explains. . ., Judge Winter's footnote does not at all say that Judge Sotomayor misstated the law. The footnote says that lawyers were misrepresenting the Sotomayor decision. . . .Indeed, Judge Winter's footnote is not subtle about this. . . .

It's crystal clear, is it not, that Judge Winter is chiding the advocacy, not the judges who decided the Samaria case? This is so elemental, as Hutchinson notes, that one gets the feeling that Rosen himself must be incompetent.

Despite the plain language of Winter's footnote, Rosen defends his original reading of it by stating that the footnote lacks clarity:

Some readers have questioned my account of how "a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor [United States v. Samaria] might have inadvertently misstated the law in a way that misled litigants." Indeed, the footnote is hardly a model of clarity-and I can see why readers might not come to the same conclusion I reached.

The text of Winter's footnote, which Rosen noticeably has yet to engage, does not support his effort to portray it as ambiguous.

Perhaps implicitly conceding that the text of the footnote does not support his description of it, Rosen states that anonymous sources in the Second Circuit told him that people assumed that Winter intended to criticize Sotomayor in the footnote:

But the careful observers of the Second Circuit I talked to, who were familiar with the case, said Winter was widely assumed to be making an effort to be polite, avoiding direct criticism of his colleague while trying to distinguish Sotomayor's holding in Samaria from some loosely written dicta. In their view, Sotomayor's dicta in Samaria could indeed be read to call the earlier cases into question, just as the litigants suggested, and they believe Winter was trying to contain the damage to avoid embarrassing his colleague (emphasis added).

I have read the footnote many times -- as well as the case in which it appears. I have also read Sotomayor's opinion in Samaria, which was unanimously decided by the three-judge panel. Winter's footnote simply does not support Rosen's analysis. Also, Sotomayor's opinion does not support the lawyer's interpretation of it, which is why Winter summarily dismissed the argument. Furthermore, absolutely nothing in the text of the footnote makes it "unusual." Judges frequently dismiss arguments that misinterpret precedent. This is as common as oxygen.

Most lawyers quickly learn during law school and in the early stages of their legal careers that it pays to read cases in their entirety, rather than plucking sentences out of context and using them to support a particular proposition. No reasonable lawyer who reads the entire Samaria ruling could use it to support the conclusion that Winter's footnote rejects. The fact that Winter relegates the discussion to a footnote demonstrates how "seriously" he took the argument.

Rosen's anonymous sources do not even document his argument that Winter actually intended the footnote as a criticism of Sotomayor. Instead, Rosen only confirms that they said it was "widely assumed" that he did. This is not solid journalism. The Second Circuit is a massive enterprise. Rosen's sources cannot have personal knowledge of the widely held assumptions of the Second Circuit. His reliance upon their views (and we do not even know how many people reported this "assumption") is problematic.

Closing Thoughts
At this point, readers must choose among Rosen and his anonymous sources and the plain language of Winter's ruling. For now, I'm sticking with the latter. The fact that Rosen wants his readers to believe the sweeping statements of anonymous sources rather than public documents confirms his critics' belief that his essay relies primarily on gossip.

Rosen's citation to the notorious lawyer comments section of the Almanac of the Federal Judiciary (as evidence that Sotomayor is mean) only heightens the concern that he is not producing serious analysis. The AFJ is not used to evaluate judges for judicial appointments. Instead, the very thorough vetting process of the American Bar Association is a much more widely accepted measure of judicial talent.

The 1997 ABA report on Sotomayor states that a "substantial majority" of respondents ranked her as "well qualified" -- the highest possible ranking. A minority stated that she was "qualified" -- the second-highest ranking. Rosen has yet to mention Sotomayor's ABA rating. Instead, he prefers to use comments from the biased sample of people who called him to discuss Sotomayor as evidence of her performance.

Finally, after two essays, Rosen still has not analyzed one opinion written by Sotomayor. This glaring omission completely undermines his evaluation of her.

Note: Glenn Greenwald has responded to Rosen's response with a very passionate analysis.