Rosen Writes on Race and Sotomayor

Jeffrey Rosen's first analysis of Supreme Court nominee Sonia Sotomayor sparked very heated responses. I described his article as a "hatchet job," and many other bloggers and media joined the fray. Rosen subsequently distanced himself from the original essay.

Now, Rosen has shifted gears -- mirroring a evolving approach by Republicans who oppose Sotomayor. Rosen's latest work on Sotomayor analyzes her views on "race" and "gender," rather than her purported intellectual shortcomings and temperament. In a Time article, "Where Sonia Sotomayor Really Stands on Race," Rosen primarily examines matters that have already received a tremendous amount of airplay. For example, he discusses the Second Circuit ruling in Ricci v. DeStefano, a speech Sotomayor delivered at the University of California at Berkeley, and a SCOTUS blog analysis of the numerous race cases Sotomayor has decided. Based on this review, Rosen concludes that:

An examination of Sotomayor's career supports the idea that on the bench, she has been a racial moderate, not a radical. At the same time, her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed. And for that reason, if confirmed, she could influence the racially charged issues the Supreme Court will confront over the next few decades in unexpected ways.

I agree with this conclusion. Nothing in the cases Sotomayor has decided or the speeches she has delivered suggests that she is a radical on issues of race. Instead, Sotomayor exhibits nuance -- a claim I made weeks ago after reviewing the entirety of her Berkeley talk. Accordingly, I am glad to see Rosen approach the issue with the complexity that Sotomayor (and the public) deserves.

One-Sided Analysis of O'Connor and Ginsburg Position on Gender
Despite my general approval of his new article, there are a few moments where Rosen's analysis lacks depth. For example, Rosen, like many other commentators, cites quotations by Justice Ginsburg and Justice O'Connor which suggest that these two women view gender as irrelevant to judging and to law. Rosen's use of these comments, however, distorts the complexity of Ginsburg's and Sotomayor's views on the subject of identity and judging.

As I have argued several times on this blog, Ginsburg and O'Connor have made statements in judicial opinions that contradict the "gender neutral" quotations that Sotomayor's detractors frequently cite. For example, in J.E.B. v. Alabama, Justice O'Connor agreed that prosecutors could not use peremptory challenges to exclude potential jurors based on sex. O'Connor, however, wrote separately to emphasize that gender remains relevant in law:

We know that like race, gender matters. . . . [O]ne need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case. . . .Individuals are not expected to ignore as jurors what they know as men--or women. . . .

[T]o say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said [the same thing about race]. . . .Though we gain much from this [ruling], we cannot ignore what we lose. [W]e have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes.

O'Connor also urged the Court not to extend J.E.B. to private lawyers because she wanted them to have the opportunity to maximize the number of women on juries for cases raising issues such as sexual harassment.

Furthermore, in Grutter v. Bollinger, O'Connor wrote the lead opinion which held that the University of Michigan law school had a compelling reason for wanting racial diversity: enhancing "viewpoint" diversity and the robust exchange of ideas in the classroom. O'Connor's opinions in J.E.B. and Grutter discredit the idea that she does not believe that race and sex matter. Rosen and others who continue to hold O'Connor (and Ginsburg) out as women who discount gender's relevance have failed to interrogate arguments that undermine their simplistic portrayals (on Ginsburg, see: Sotomayor's Opponents Apply Racial and Gendered Double-Standard).

Analysis of Death Penalty and Race
Rosen also contends that Sotomayor's position on race and the death penalty could impact future caselaw. Apparently, Sotomayor linked the death penalty with racism while she was a prosecutor for the State of New York. Rosen asserts that: "The court rejected that claim in 1987, but Sotomayor might be sympathetic to it." This statement, however, simplifies the Court's highly criticized 1987 ruling in McCleskey v. Kemp (which I have discussed on this blog). In McCleskey, a closely divided (5-4) Court rejected the petitioner's argument that Georgia applied the death penalty in a racially discriminatory fashion. Even if the "sophisticated" statistical analysis McCleskey introduced into evidence proved a racial correlation, he did not show in his own case that race mattered, nor could he demonstrate that Georgia maintained the death penalty because it wanted the racial patterns to occur.

Four justices, however, dissented from the majority opinion. Also, after he retired, Justice Powell, who wrote the majority ruling, listed McCleskey as a decision he "regretted." If Powell had changed his mind earlier, a majority of the Court would have concluded that racism impacted application of the Georgia death penalty.

Rosen should also consider the position of Justice Scalia, who voted with the majority in McCleskey. Although he sided with Georgia, Scalia wrote a memorandum to the other justices prior to the ruling in which he conceded that jurors and prosecutors operate on arbitrary biases like race. Scalia, however, says that this fact is "ineradicable," and he votes to reject McCleskey's claim -- despite his own statement that he needs no additional "proof" regarding the operation of race among jurors and prosecutors. If Scalia had voted in a manner that followed the logic of his memorandum and if Powell had changed his mind earlier, then a 6-3 majority would have agreed with Sotomayor. Brennan and Marshall, who dissented, opposed the death penalty altogether.

Sotomayor's feelings about the death penalty are not extraordinary, relative to the views of other justices. Much of the analysis of Sotomayor, however, decontextualizes her comments by failing to consider the breadth of her work and by failing to consider strikingly similar commentary by other judges.

Finally, the weight of academic literature, government studies, and even Supreme Court rulings on the death penalty supports Sotomayor's conclusion. In 1990, the General Accounting Office conducted an extensive analysis of existing studies on the death penalty. After eliminating unreliable studies and controlling for nonracial factors, the GAO found a pervasive pattern of race-based application of the death penalty -- particularly in the instance of a white victim. This bias sends more whites than blacks to the death chambers (because most murders are intraracial), but it legitimizes Sotomayor's view of the death penalty. The most racist aspect of the death penalty is the lack of empathy for black murder victims. McCleskey's study showed the same pattern.

Between 1930 and the early 1970s, almost 90 percent of the individuals executed for rape were black men, and all of the victims were white. This number is unexplainable on grounds other than race, particularly given the intraracial nature of rape. The Supreme Court invalidated the death penalty for rape in 1977, on the grounds that it was a disproportionate punishment for a crime that fell short of murder. Nevertheless, in other cases, members of the Court have cited to the race and rape statistics in order to contest the lawfulness of the death penalty.

Although Rosen's latest effort on Sotomayor improves upon his initial analysis, he fails to offer sufficient context in some places. Alas, he is certainly not alone on this issue.

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.

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

In an effort to defend his harsh "evaluation" of Judge Sonia Sotomayor's temperament, Jeffrey Rosen cites the Almanac of the Federal Judiciary. The AFJ, published by Aspen Press, contains judicial biographies and summaries of attorney comments regarding individual judges. Some critics have argued that AFJ lawyer comments can reflect racial and gender biases. I agree.

Tough Women Are Bitches, Tough Men Are Impassioned Athletes
A persistent and ubiquitous gender stereotype portrays smart and aggressive women as domineering, mean, nasty bitches. This stereotype explains much of the negative treatment that Hillary Clinton received during her presidential campaign. Media commentators -- including so-called liberals such as Keith Olbermann and Chris Matthews -- described Clinton with sexist language that would likely result a finding of sex discrimination if companies used it to evaluate women employees.

With respect to lawyers, statistics show great disparities that correlate with gender. Although women are just under 1/2 of the summer associates and associates at law firms, they are just 17% of partners. Women hold roughly 1/4 of federal judgeships, and only one woman sits on the Supreme Court. Considering the impact of race and gender status together reveals even greater disparities. Women of color are virtually unrepresented as partners in the nation's law firms and as members of the judiciary. This is the context in which Sonia Sotomayor and all other female lawyers of color exist.

Almanac of the Federal Judiciary: The "Tempermant" Issue
Most of the early reviews on Sotomayor concede that the summa cum laude Princeton and Yale Law School graduate is smart. The worst reviewers, however, say that she lacks judicial temperment. Rather than being firm, but flexible, detached but engaged, her detractors describe her as a firery Latina tempest waiting to knife and brutalize lawyers in the courtroom. A survey of lawyer comments from the AFJ report on Sotomayor confirms this view of Sotomayor among some lawyers:

Sotomayor can be tough on lawyers, according to those interviewed. "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 have a very good temperament." "She abuses lawyers." "She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "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 does not like". . . .

"She dominates oral argument. She will cut you off and cross examine you." "She is active in oral argument. There are times when she asks questions to hear herself talk." "She can be a bit of a bully. She is an active questioner." "She asks questions to see you squirm. She is very active in oral argument. She takes over in oral argument, sometimes at the expense of her colleagues." "She can be very aggressive in her questioning." "She can get harsh in oral argument." "She can become exasperated in oral argument. You can see the impatience." "You need to be on top of it with her on your panel."

The comments, which are racially and sexually coded, remind me of the "negative" description of Hillary Clinton as ambitious. I have never heard ambition stigmatized in a male -- and certainly never in a presidential candidate. But commentator after commentator portrayed Clinton's ambition as a negative quality, and they seemingly never realized how their language rested on stereotypes. For Sotomayor, being a sharp interrogator and requiring lawyers to be "on top of it" are negative qualities. These traits are not negative in most men, certainly not white men.

Some lawyers, however, perceive Sotomayor's "toughness" as a positive judicial quality:

Lawyers said Sotomayor is very active and well-prepared at oral argument. "She is engaged in oral argument. She is well-prepared." "She participates actively in oral argument. She is extremely hard working and always prepared."

Compare the lawyer responses to Sotomayor with the AFJ comments on Justice Scalia -- whom many lawyers consider a tough questioner as well. While lawyers negatively describe Sotomayor's toughness, in Scalia, toughness receives praise, if not awe. Scalia's hazing of lawyers is just part of the understood fun among the brotherhood of lawyers. Although reviewers describe Scalia as tough, this does not make him a dangerous "out-of-control" she-judge. Notice the sporting and friendly hazing metaphors in the AFJ description of Scalia:

Never utter the words "legislative history." If you do, chances are Scalia will interject with a ridiculing harangue that makes it clear he views legislative history as poppycock. Legislative debates are often contrived and can't trump the actual words of the statute, Scalia insists. But even if you play it safe, you can expect tough, persistent questioning from Scalia, often delivered with an almost gleeful lust for the sport of jabbing and jousting with advocates before him. And Scalia is an equal-opportunity jouster; even when his position seems obvious, Scalia will be just as hard on the lawyer he agrees with as the lawyer he'll oppose. Ever the law professor, Scalia will sometimes ask questions with no clear relevance, just to see if you are on your toes. In a now-legendary exchange during arguments on a federal rule that barred the advertising of the alcohol content of beer, Scalia asked a lawyer for Coors to define the difference between beer and ale. The lawyer, the late Bruce Ennis, answered without missing a beat, to the amazement of justices and spectators alike, and Coors won the case. But Scalia can be nasty, as well. When a lawyer once paused too long before answering his question, Scalia said sharply, "You have four choices, counselor: "Yes," "No," "I don't know," or "I'm not telling." But the most important advice on how to sway Scalia at oral argument or in brief-writing is to buy his new book. . . .[One] tip: Don't use the kitchen sink strategy of throwing at the Court every conceivable argument your legal team can think up. Pick your best three, at most, Scalia and Garner advise. "Arm-wrestle, if necessary, to see whose brainchild gets cut."

In Scalia, toughness is positive; in Sotomayor, it is nonjudicial. If Scalia asks irrelevant questions, he is just being a dutiful "law professor" trying to hold the attention of his class. If Sotomayor does the same thing, she is just interested in hearing herself talk. When Scalia duels harshly with litigants, the "spectators" watch in amazement. If Sotomayor asks tough questions, she is seen as difficult, temperamental, and excitable. The disparate treatment is too dense to deny.

Throw Away the AFJ
Instead of using the AFJ's abrasive and biased commentary to evaluate judicial candidates, for over 50 years presidents have consulted the rigorous judicial evaluations prepared by the American Bar Association. When President Clinton nominated Sotomayor to the court of appeals, a "substantial majority" of the ABA judicial committee gave her the highest ranking of "well qualified," while a minority gave her the intermdiate "qualified" rating.

Unlike the AFJ, the ABA interviews a broad cross-section of lawyers, law professors, judges and other people who have professional contacts with the judicial candidate in order to construct an accurate picture. I strongly encourage people who care about gender and racial equality to deconstruct the gender-coded "temperament" argument and to ignore the AFJ and Rosen's citation to it.

Note: I found the AFJ on WESTLAW, which is a paid legal research database. I cannot link to it. If someone has free links to the AFJ sections on Scalia and Sotomayor, please feel free to post them in the comments section.

Links for all Sotomayor-related materials on one convenient page: Sonia Sotomayor on Dissenting Justice

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.

Earth to Orrin Hatch: Even Conservative Judges Make Policy!

Now it's Orrin Hatch's turn to go after Judge Sotomayor. Hatch, a member of the Senate Judiciary Committee (and thus a gatekeeper for potential Supreme Court nominees) recently said that Sotomayor has a "problem" because she previously stated that courts of appeals "make policy." Sotomayor apparently made the comment during a conference at Duke University. Fox News played a video clip of Sotomayor's comment while Hatch appeared on the network for an interview.

The clip is too short to give context to the statement, which makes it the perfect scare tactic. Hatch has responded to the video with typical political hysteria:

I'm not very happy about judges who will substitute their own policy preferences for what the law really is, who think that they can run the country from the bench when they actually have a limited role.

But saying that judges "make" policy is not the same thing as saying that judges "substitute their own policy preferences for what the law really is," and it certainly does not endorse the idea that judges "can run the country from the bench." I am not aware of any rulings in Sotomayor's nearly 20-year judicial career that explicitly or implicitly embrace the scarecrow position that Hatch articulates. Hatch, like Rosen, has prejudged Sotomayor without engaging her work -- even though he concedes that "she has a whole raft of opinions that I think would have to be scrutinized very carefully" (emphasis added).

Do Judges Make Policy: Yes and No
Although the extremely short length of the video makes it impossible to know what Sotomayor intended her comment to convey, it is possible to examine the issue of judges and policy in a broader context. The question is far more complex than Hatch acknowledges.

First, let's tackle the easy issue: Do judges make laws, or, acting solely on personal will, do they create broad rules for everyone to follow? No. Federal courts only hear cases or controversies involving disputes over federal law (with very few exceptions). Outside of these cases or controversies, courts, unlike lawmakers and executives, cannot simply announce policy. So, Hatch's statement about imperial judges hardly describes the federal bench, and it certainly does not describe Sotomayor's judicial philosophy, which many people view as centrist.

The second way of approaching this issue is more complex. Given the decreasing ability or willingness of the American public to engage complex arguments, I thank the few of you who keep plowing through this essay.

Conservative and Liberal Judges "Make Policy"
When judges decide cases, the issues are usually straightforward. But there are many cases where the law is either unclear or where the relevant constitutional provision, statute or common law principle leaves a fair amount of discretion for courts to pick among reasonable choices. In those instances, particularly in the context of constitutional law, courts arguably "make policy" as they attempt to define the boundaries of legal constraints and obligations. Conservative and liberal rulings follow this principle. Because it is popular to assume that judicial policymaking is unique to liberals, this essay primarily examines conservative judicial policymaking. Consider the following set of affirmative action cases.

Parents Involved in Community Schools v. Seattle School District Number 1
In Parents Involved in Community Schools v. Seattle School District Number 1, the Supreme Court invalidated policies adopted by Seattle, Washington and Louisville, Kentucky that were designed to prevent public schools from becoming racially homogeneous. Five members of the Court, including Justice Kennedy, held that the policy was unconstitutional. But in his somewhat overlooked concurring opinion, Justice Kennedy argued that he was open to other measures that could maintain or achieve diversity. He then proceeds to list those alternative policy choices:

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.

Kennedy is one of the most powerful members of the Supreme Court. Because he is the sole "moderate" (this is a highly relative description) among an even numbers of conservatives and liberals, his perspective will likely determine the outcome in very divided cases.

Even though Kennedy's opinion simply interprets the constitution, it is difficult not to view his "suggestions" in Parents Involved as "policy." After the ruling, school districts across the country began implementing new policies designed to create or maintain diversity while adhering to Kennedy's specific policy requirements. Kennedy and the conservatives believed that the existing policy choices were unconstitutional. The alternatives Kennedy suggests, however, would be acceptable to him even if they achieved the exact same result as the ones he voted to invalidate in Parents Involved.

Lawyers and legal scholars prefer to call Kennedy's opinion "doctrine," but if it defines the boundaries around which acceptable policy can operate, the opinion is not a passive bystander in policy debates regarding educational diversity. Instead, it is a major player, as demonstrated by school districts shifting their policies to meet Kennedy's preferences.

Richmond v. Croson
In Richmond v. Croson, the Court struck down a set-aside program which allocated a percentage of municipal contracts to minority-owned business. The Supreme Court struck down the set-aside plan, even though the city argued that it was necessary to remedy discrimination in the contracting industry. Justice O'Connor authored the Court's opinion, and, like Kennedy, suggested alternative policies to achieve the goals of diversity:

[T]he city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races. Simplification of bidding procedures, relaxation of bonding requirements, and training and financial aid for disadvantaged entrepreneurs of all races would open the public contracting market to all those who have suffered the effects of past societal discrimination or neglect. Many of the formal barriers to new entrants may be the product of bureaucratic inertia more than actual necessity, and may have a disproportionate effect on the opportunities open to new minority firms. Their elimination or modification would have little detrimental effect on the city's interests, and would serve to increase the opportunities available to minority business without classifying individuals on the basis of race. The city may also act to prohibit discrimination in the provision of credit or bonding by local suppliers and banks. Business as usual should not mean business pursuant to the unthinking exclusion of certain members of our society from its rewards.

When cities follow O'Connor's suggestions, they are technically implementing their own policies, but they do so in response to the conditions that her opinion describes. O'Connor's ruling -- not the Equal Protection Clause -- defines the specific policy constraints and determines the boundaries around which all governmental actors must conduct business. Accordingly, it is difficult to separate her opinion from the subsequent policies.

Regents of the University of California v. Bakke
In Regents of the University of California v. Bakke, the Supreme Court ruled that achieving racial diversity in higher education is a "compelling" governmental interest. The 1978 ruling has immensely shaped education policy by determining how schools can pursue this goal.

Justice Powell's ruling recognized the compelling interest in educational diversity, but stated that schools could not use quotas to pursue this goal. Instead, he encouraged them to use the "Harvard plan," which he described as one that considered race as a "plus" among many other factors in the admissions process.

Since Bakke, schools all over the country require applicants to submit personal statements and essays, which allow prospective students to express important dimensions of their background and personal struggles to demonstrate their contribution to diversity. Admitting students who write about their experiences with racial or gender discrimination or disadvantage is a constitutional method of creating diversity -- even if the number of students of color admitted each year mirrors the outcome that a quota would have achieved (a point the dissent in Bakke raises). Bakke has greatly impacted the admission of students to institutions of higher education.

Other Cases: One "Conservative," One "Liberal"
Although the preceding discussion focuses on "policies" implicated in the Court's affirmative action doctrine, the same argument applies in other contexts.

Plessy v. Ferguson
Plessy v. Ferguson is one of the most "conservative" cases by 2009 moral standards. The ruling validated Jim Crow and segregation. The Supreme Court held that the Fourteenth Amendment guarantee of "equal protection" only applied to political and civil equality but not social equality. The Court, and many legal thinkers at the time, viewed racial mixing in places of public accommodation, public schools and marriage as "social" concerns. Accordingly, laws that mandated racial segregation or which prohibited interracial marriages did not violate the constitution.

The Court held that in order to satisfy the equal protection requirement, states simply needed to provide "separate but equal" facilities. This holding does not create the policy of equal protection (the Fourteenth Amendment does that), but it certainly establishes boundaries around which states could legislate. And while the "equal" part of the standard would remain elusive, in the 1950s the Supreme Court began to take the equality requirement seriously and invalidated "blacks-only" higher education programs that provided grossly inferior facilities and training.

Roe v. Wade
Roe v. Wade epitomizes the horrors of liberal policymaking for conservatives. In that case, the Supreme Court ruled that the right to terminate a pregnancy was a protected "liberty" interest, guaranteed by the Due Process Clause of the Fourteenth Amendment. The Court, however, held that states could legitimately protect the health of women undergoing abortions and safeguard potential life.

The Court then mapped out an approach which allowed states to ban abortions altogether after "viability," unless they were necessary to protect a mother's life or health, and to regulate abortion providers so that the procedure would not imperil a patient's health. The Roe framework was technically "doctrine," but it greatly constrained the ability of states to regulate abortions prior to viability. Consequently, the case established the minimum standard for nationwide abortion policy until it was modified by the Court in 1992.

Closing Thoughts
The country deserves reasoned deliberation and reflection over Supreme Court nominees. Thus far, I have seen juvenile antics that do not even pretend to examine Sotomayor's judicial record.

Immediately after Justice Souter announced his retirement, a stream of white male commentators announced their anxiety over a woman of color sitting on the Supreme Court. Apparently, having just two white women on the Court in its entire history is as much as some people can bear. Then Rosen publishes an article that describes Sotomayor as a "gamble," even though his essay contains factually incorrect information and reviews of Sotomayor that sound a lot like petty gossip. Now, Hatch is using a short video clip, divorced from the context of a longer panel discussion, in order to describe her as a "problem" candidate.

Sotomayor's critics have not reviewed one judicial opinion she has written, nor have they referred to the ABA evaluation of her qualifications. Instead, they keep focusing on irrelevant criteria for assessing her competence. Racism and sexism also use irrelevant criteria to defeat qualified individuals. Regardless of whether Sotomayor's critics are sexist and racist, the end result of their actions looks the same.

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

[New and Convenient Sotomayor Link Page: Sonia Sotomayor on Dissenting Justice]

In an article published in the New Republic, Jeffrey Rosen lays out "The Case Against Sotomayor." It is a very weak case.

Rosen, a law professor at George Washington University, concedes that Sotomayor, who grew up in a low-income single-parent household in the South Bronx, has a great biography. Despite her background, Sotomayor, a Puerto Rican woman, attended Princeton University and Yale Law School. She later became the youngest federal judge in the Southern District of New York at the time of her appointment. Rosen also concedes that Sotomayor has glowing support from other judges in the Second Circuit and from her former law clerks.

Rather than analyzing traditional data on judges (i.e., bar association reports), Rosen builds his "case" exclusively by holding discussions with persons who never worked for Sotomayor. Specifically, he "interviewed" former law clerks for other Second Circuit judges and former prosecutors.

Rosen's Biased Sample
It is unclear why Rosen only interviewed prosecutors and former clerks for other judges, rather than defense attorneys, litigators, and Sotomayor's own former clerks. But it does not take a degree in statistics to realize that Rosen's sample is extremely biased and limited. Although prosecutors do not hold uniform viewpoints, given the breadth of attorneys who have practiced before Sotomayor, Rosen's exclusive reliance on prosecutors is inexcusable.

Furthermore, clerks for other judges do not have the best ability to evaluate Sotomayor. In fact, the use of clerks to determine whether a judge should receive a Supreme Court nomination is extremely problematic. Most clerks have just graduated from law school, have never tried a case or practiced law, and do not have sufficient experience or knowledge of the law to make an informed assessment of a judge. Given these inherent weaknesses associated with a law clerk's opinion of a judge, Rosen's reliance upon law clerks who never worked for Sotomayor is a rather crude and unhelpful way of evaluating her qualifications.

The American Bar Association uses a much more expansive and generally accepted analysis (including talks with a broad cross-section of lawyers and judges) to evaluate judicial performance. After President Clinton nominated Sotomayor to the Second Circuit in 1997, the ABA reported that a "substantial majority" of respondents ranked her as "well qualified," while a "minority" found her "qualified."

Rosen Fails to Analyze Sotomayor's Rulings
Given Rosen's background in law, it might surprise many readers of his essay that Professor Rosen does not offer his own independent analysis of Sotomayor's rulings to support his condemnation of her candidacy. Instead, Rosen admits his own ignorance regarding Sotomayor's jurisprudence and the limits of the group of persons he interviewed:

I haven't read enough of Sotomayor's opinions to have a confident sense of them, nor have I talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths. It's possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities.

Despite his admitted lack of knowledge regarding Sotomayor's judicial record, Rosen urges President Obama to "satisfy himself that he has a complete picture before taking a gamble." Rosen has described Sotomayor as a "gamble" even though he admits that he has incomplete knowledge of her record as a judge. Reaching a conclusion about a person without knowledge or with incomplete knowledge of the individual's qualifications seems like a standard example of prejudice, but readers can draw their own conclusions about Rosen's motivation.

While Rosen does not independently analyze Sotomayor's jurisprudence, he mentions two cases that supposedly raise questions about her capabilities. First, he cites to a footnote in an opinion written by Judge Ralph Winter, a senior judge on the Second Circuit, which discusses a case that Sotomayor authored. Rosen says that the footnote is "unusual" and that Judge Winter finds that Sotomayor's opinion "might have inadvertently misstated the law in a way that misled litigants."

Rosen's assertion is patently untrue, and it grossly distorts the footnote's language. Winter's footnote is not "unusual." Instead, the footnote chides lawyers for misreading Sotomayor's ruling and for trying to expand the case beyond its holding:

[The party's] reading of Samaria [the opinion authored by Sotomayor] would attribute to it the overruling of a long-standing line of cases in this circuit. . . However, Samaria does not purport to address the validity of those cases in any way. Samaria's discussion of conscious avoidance related only to a sufficiency issue, and the panel thus made it clear that, on the evidence before it, the requisite level of intent could not have been found even on a conscious avoidance theory (emphasis added).

Rosen has completely misrepresented Winter's footnote in order to question Sotomayor's competence as a judge, when the footnote actually criticizes the attorney's misplaced reliance upon the opinion she authored. The ruling at issue was unanimously decided.

Rosen also mentions an affirmative action case, Ricci v. DeStefano, that is currently pending before the Supreme Court. Again, Rosen offers no independent analysis of the case. Instead, he describes it as "controversial." He also says that dissenting judge Jose Cabranes criticized the majority for not addressing the constitutional issues raised by the plaintiffs. But Sotomayor clearly did not author the "per curiam" ruling. Furthermore, the full Second Circuit voted 7-6 not to hear reargument of the case, which suggests that it was not a gross misstatement of the law or a misstatement at all.

Rosen has written a very weak case against Sotomayor. Hopefully, President Obama will not take a gamble and credit his bankrupt analysis while evaluating candidates to fill the vacancy created by Justice Souter's retirement.

[Note: Rosen has responded to some of his critics, and I have responded to Rosen's new arguments. Also, to what extent do gender and race stereotypes inform this debate?]

[Note: This article was edited to reflect that Sotomayor became the youngest judge in the Southern District of New York at the time of her appointment and that Judge Winter maintains "senior" status.]

Some citations to this article:

New York Times/Opinionator/Eric Etheridge: Supreme Court Smear

ABC News/Political Punch/Jake Tapper: Blowback in the SCOTUS Wars

Salon/Glenn Greenwald: Jeffrey Rosen, TNR and the Anonymous Smears Against Sonia Sotomayor

The New Yorker: Close Read: Insults and Impunity

Media Matters: TNR's Rosen Misrepresented Footnote in Making Purported "Case Against Sotomayor"

Recent Dissenting Justice articles regarding the Supreme Court:

Earth to Orrin Hatch: Even Conservative Judges Make Policy!

Talking Points on Souter Replacement?

Is Justice Scalia an "Irresponsible" Judge?