Ilya Shapiro and Dana Milbank Float the "Dumb Broad" Stereotype

Ilya Shapiro and Dana Milbank have joined a chorus of dudes who have floated the "dumb broad" trope in their "analysis" of Judge Sonia Sotomayor. Ironically, while Shapiro pretends to condemn Obama's choice as rooted in identity politics rather than merit, his essay, which lacks any substantive review of Sotomayor's rulings, can only have credibility among people who are inclined to believe that a high-achieving women of color lacks intelligence.

Jeffrey Rosen was originally responsible for giving this narrative heels in a discredited article that he has twice disclaimed. Nevertheless, Shapiro and Milbank have kept the fans going, and Shapiro even cites to Rosen's original analysis.

Shapiro and Milbank Say Much, Prove Little
Shapiro and Milbank fail for the same reasons that plagued Rosen's analysis. Neither has analyzed anything in her writings that condemn her as a judge or as an intellectual. Shapiro says that Sotomayor has not issued any "important" decisions, but he never defines what this means. Even if one could define the term in this context, this would hardly disqualify her from the bench. While the Supreme Court has the luxury to take the "sexiest" and most compelling cases (because it has discretionary review for the most part), lower federal courts do not. They take cases as they come to them.

Also, during Sotomayor's tenure, the Second Circuit has not been the hotbed of judicial activity as the more ideologically partisan circuits, like the Ninth, Fourth and Fifth Circuits. It is more mainstream and tightly wrapped ideologically. Today's Second Circuit is not known for its blazing judicial battles. But the absence of opinions that provide dissertations on unresolved legal issues cannot mean Sotomayor is less qualified. The use of this standard would have rendered unqualified most of the justices in the Supreme Court's history.

I also find it disturbing that none of Sotomayor's negative reviewers demonstrates through independent analysis why Diane Wood or Elena Kagan -- persons whom Sotomayor is most often compared -- are more qualified to sit on the Supreme Court. Shapiro, for example, simply states that Sotomayor is "far less qualified for a seat on the Supreme Court" than Kagan or Wood. But Shapiro does not substantiate this claim by applying his own standards to Wood and Kagan. He does not cite to Wood's "important" decisions, and he does not review Kagan's articles that have reshaped legal analysis. Indeed, Kagan has a relatively thin publication record, given her acclaim and achievements, and many of her publications are in "home" journals (i.e., journals at the school where she taught) and are "tribute" articles that honor deceased jurists. Nevertheless, the popular analysis summarily describes Kagan as immensely qualified and Sotomayor as weak. What accounts for the difference?

I am not attempting to discredit either Kagan or Wood. Instead, I seek to reveal that Sotomayor's detractors have failed to make the case that she is an intellectual "lightweight" or that she is less qualified than others on the shortlist. Either her reviewers are sloppy journalists or they are moved to their positions by some motivation that has nothing to do with her work. Pick your poison.

PS
I had originally intended to include Jonathan Turley on the list with Shapiro and Milbank. Earlier Turley stated that Sotomayor "is not the intellectual powerhouse that many academics had hoped for." He now says that:

Like a number of other professors and commentators, I have expressed disappointment in the fact that Sotomayor’s opinions lack of deeper view of the law or any particularly profound observations on the law. Conservatives, however, take this lack of depth in these opinions as evidence that Sotomayor is not smart or competent. This is demonstrably absurd.

He more recent analysis offers a more engaging approach.

Rosen's Reviewers Suddenly Get Names!

Jeffrey Rosen has published a glowing review of Judge Diane Wood, a person rumored to be on the "short list" of candidates for a position on the Supreme Court. Recently, Rosen wrote an extremely negative review of Judge Sonia Sotomayor, another potential Court nominee, in which he utilized negative comments by anonymous individuals whom he claims voluntarily contacted him to offer their bad reviews. The negative comments, however, came exclusively from clerks of other judges and prosecutors. Rosen's review triggered a wave of heavy criticism on the Internet.

By contrast, Rosen's review of Wood is laced exclusively with positive comments made by colleagues of Wood at the University of Chicago Law School where she was a Professor prior to becoming a federal judge and where she held the position of Associate Dean. Wood remains a "Senior Lecturer" at the law school. Although Rosen does not state the nature of his contact with the reviewers he quotes regarding Wood, the comments seem like the product of normal investigative reporting, rather than petty gossip (as his analysis of Sotomayor sounds). It is unclear why Rosen failed to solicit and publish positive commentary surrounding Sotomayor, including comments from law professors and other individuals with whom she has closely worked.

Of Interest: The SCOTUS blog has published a series of essays that analyzes the 150 opinions Sotomayor has written in civil cases as a federal appeals court judge. The blog explicitly comments on the lack of attention that other reviewers have given her body of judicial work.

Earth to Obama: Your Supreme Court Choice Is SUPPOSED to Galvanize Republicans

Democrats chose Obama because he promised change from eight years of Bush. This includes having liberal nominees for the federal courts. But many articles have portrayed Obama as seeking to avoid controversy with his choice for the Court.

But the judicial nomination process -- especially with respect to the Supreme Court -- is inherently a political battleground. Republicans know this, and so do Democrats. The political parties have known this from the start of the nation's history.

Judicial Appointments Have Always Been "Political"
Marbury v. Madison is the first case that law students read in about 99% of required constitutional law courses. The legal issue was fairly simple -- the plaintiff Marbury sought the delivery of his commission to sit as a justice of the peace of the District of Columbia. Madison, the Secretary of State, refused to deliver it at the request of newly elected President Jefferson.

The broader background facts, however, demonstrate that esteemed early Americans viewed courts in stark political terms. Before Jefferson took office, the lame duck Adams administration passed a law augmenting the size of the federal judiciary and rushed to fill the additional slots with Federalist Party nominees. Time ran out before some of the appointees could get their commissions, which they needed to sit as judges.

After Jefferson took office, he and the new Congress repealed the statute that enlarged the size of the judiciary and withheld the undelivered commissions because he did not want the Federalist Party nominees to sit in judgment of the Democratic-Republicans. In order to evade Supreme Court review, Jefferson shut down the Court for over one year. Despite this behavior, Jefferson is a exalted figure in United States history. Today, by contrast, politicians feign outrage over ideology -- that is, if their own party is not making the judicial nomination.

Politics Influences Judicial Appointments Today, and the Constitution Anticipates This Situation
Hearing the parties disingenuously assert that ideology should not play a role in the selection of judicial candidates is laughable. If both parties followed their insincere anti-ideology rhetoric, then Scalia, Thomas, Alito and Roberts would not sit on the bench, nor would Ginsburg and Breyer. Stevens and Souter are a bit more complicated. The normal script, however, describes both of these justices as Republican "errors," which supports my thesis that presidents pick candidates based on ideology.

If the Framers of the constitution did not want the process to have a political dimension, then they would not have allowed the President to make nominations and the Senate to confirm the appointments. The tremendous role of the President and Senate ensure that politics will continue to influence judicial selections.

Ideology Is Not Inconsistent With "Judging"
To say that a judge is "ideological" does not mean that a he or she lacks "judgment" or that he or she does not follow doctrine or principle. Conservatives have described Sotomayor as an ideologue, despite that fact that she has ruled against numerous civil rights plaintiffs and against the Center for Reproductive Rights in a case where she steered very closely to pre-existing precedent.

The Republicans have constructed their list of judicial nominee faux pas, and "gay marriage" has joined abortion as a potential judge-slayer. Articles in both the Washington Post and the Los Angeles Times outline the conservative (idelogical) strategy. For example, Republicans hope to go after Seventh Circuit Judge Diane Wood, if Obama picks her to replace Souter, because she dissented in a pair of cases in which the circuit upheld state bans on partial-birth abortion. But until recently, Woods' dissenting view mirrored Supreme Court doctrine on the issue, that is, until the five conservative justices -- minus O'Connor and plus Alito -- decided that Congress could ban the procedure. The majority's effort to distinguish precedent that undermined its conclusion was strained. Basically the contrary ruling happened because O'Connor left the Court, Alito replaced her, and Kennedy is squeamish about the procedure [Note: I am squeamish about medicine, which is exactly why I went to law school.].

Change Is Not More of the Same
From the very beginning of the Democratic primaries, I disagreed with my liberal colleagues who described Obama as a leftist dream come true. I suspect that many of them are beginning to see the light at this point.

Progressives, however, can push presidents to do things that they otherwise might not do. This is how broad political change has occurred historically. Unless liberals remind Obama that we did not vote for him in order for him to capitulate to Republicans or adhere to his own right-leaning instincts, then he will have no incentive to stop doing so.

Related Readings on Dissenting Justice:

Strikingly Similar: Comparing Sotomayor's Views on Sex and Race With Statements By O'Connor, Ginsburg, Scalia and Kennedy

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

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

Earth to Orrin Hatch: Even Conservative Judges Make Policy!

Talking Points on Souter Replacement?

Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor