Jeffrey Rosen, TNR and the anonymous smears against Sonia Sotomayor

The gossipy hit piece aimed at a potential Supreme Court nominee illustrates how toxic is anonymity-based "journalism."

Published May 5, 2009 10:52AM (EDT)

(Updated below - Update II - Update III - Update IV - Update V)

Jeffrey Rosen's New Republic smear of Sonia Sotomayor's intellect and character -- based almost exclusively on anonymous, gossiping "sources" -- is such a model of shoddy, irresponsible, and (ironically enough) intellectually shallow "journalism" that it ought to be studied carefully.  Standing alone, it reveals quite a bit about anonymity-dependent "reporting" generally, The New Republic specifically, and how much of our political discourse is conducted.

Most of the gaping flaws in Rosen's piece have been fully highlighted by others.  While most of those criticisms have focused on Rosen's horrendous use of anonymous sources -- one of the most apt reactions to Rosen's piece comes, appropriately enough, in the form of well-earned derision from Wonkette --  I highly recommend this post from Law Professor Darren Hutchinson.  As Professor Hutchinson conclusively documents, one of the only issues raised by Rosen that was anything other than anonymous gossip -- a claim that one of Sotomayor's judicial opinions was harshly criticized in an "unusual" footnote by another Second Circuit judge -- is totally false.  In fact, it's so obviously false that, as Hutchinson suggests, it could be the by-product only of Rosen's extreme sloth or (ironically enough again) his lack of intellectual capacity.  Just read Hutchinson's post for an idea of how vapid, bereft of worth and downright misleading is Rosen's attack on Sotomayor.

I don't really have an opinion about whether Sotomayor would be a good pick for Obama -- I haven't done anywhere near the work necessary to formulate a meaningful judgment about that -- but, in my prior life as a litigator, I had some personal experiences with her.  I had at least two, possibly three, cases in which she was the judge -- including a Second Circuit appeal for which she wrote the opinion (reversing the District Court) on behalf of a unanimous panel.  At Oral Argument in that case, she was, by far, the most active questioner. 

Based on those experiences, I'm genuinely amazed at how -- overnight -- she's been transformed in conventional wisdom, largely as a result of Rosen's piece, into a stupid, shrill, out-of-her-depth Puerto Rican woman who is being considered for the Supreme Court solely due to anti-merit, affirmative action reasons.  The New Republic thus fulfills its principal function in life:  to allow the Right to spout any sort of invective and bile and justify it by reciting the "even-the-liberal-New-Republic-agrees" defense.

In the last 24 hours alone, Rosen's article has been used by three different National Review writers -- who, I'd be willing to bet lots of money, know virtually nothing about Sotomayor -- to declare her to be "dumb and obnoxious."  That's a phrase they've revelled in repeating three times now (and counting), culminating with this:  "I'm sure Mark H. is right about Sotomayor's being dumb and obnoxious, just as Derb is right about her being female and Hispanic is all the [sic] matters."  The amazing speed with which so many people who know absolutely nothing about her are willing, indeed eager, to assume that she's stupid and doesn't deserve her achievements -- based on the fact that she's Puerto Rican and female and Rosen published some trashy, unaccountable gossip feeding that perception -- is really remarkable. 

My perception of Sotomayor is almost the exact opposite of the picture painted by Rosen.  I had a generally low opinion of the intellect of most judges -- it's one of the things I disliked most about the practice of law -- but I found her to be extremely perceptive, smart, shrewd and intellectually insightful.  The image that has been instantaneously created of her as some sort of doltish mediocrity, based on nothing but Rosen's water-cooler chatter, is, at least to me, totally unrecognizable.  Of the countless federal judges with whom I had substantive interaction over more than ten years of litigation, I would place her in the top tier when it comes to intellect.  My impressions are very much in line with the author of this assessment of Sotomayor, who had much more extensive interaction with her and -- unlike Rosen's chatterers -- has the courage to attach his name to his statements.

It's certainly true that she was very assertive and aggressive -- at times unpleasantly so -- in how she presided over her courtroom.  In the first case I had with her, when she was still a District Court judge and I was a second- or third-year lawyer, I committed some sort of substantial procedural mistake (my recollection is hazy of my specific transgression, but I believe papers I submitted violated her rules and necessitated an adjournment of a hearing), and she very harshly excoriated me in a courtroom packed with lawyers from other cases (the scolding lasted roughly five minutes, though it seemed at the time like five hours).  I certainly did not enjoy that, and at the time harbored negative sentiments towards her (who wouldn't?) , but that behavior -- for judges -- is the opposite of uncommon. 

Federal judges have one of the most accountability-free jobs on the planet, and it very frequently breeds pompous, domineering and even abusive behavior.  They have life tenure.  Except in the most extreme cases of wrongdoing, they can never be and never are fired.  They can't even be demoted or have their responsibilities diminished.  They rule with virtually limitless reign over their little fiefdoms.  The absolute worst that can happen to them is that their decisions are appealed and reversed, but in the federal court system, where (with some very narrow exceptions) decisions can be appealed only once the case is over, reversals happen quite rarely even for the worst judges, and when it does happen, there are no personal or professional repercussions. 

Aggressive, intimidating and even bullying behavior by judges is about as common in the judicial system as witnesses and lawyers who fail to tell the complete truth.  For many judges -- who earn less, often much less, than the lawyers who practice before them -- the ability to engage in such dictatorial behavior seems to be one of the few real perks of the job.  Add to that the fact that many have overloaded dockets; shoddy lawyering is quite common; controlling one's courtroom is an important attribute for a judge; and one's patience wears thin after too many years at any job, and judicial behavior like that is so pervasive that it's just a fact of life in the practice of law.  

For that reason, many of the judges who are most respected are perceived that way despite, or even because of, their aggressive, controlling and tyrannical behavior.  That's what makes the complaints about Sotomayor's so-called "temperament" so baffling.  Even amidst Rosen's orgy of anonymous pot shots, there is no incident that stands out in terms of extreme or particularly abusive conduct.  Instead, the grievances are of the generalized type that her personality is grating and abrasive because of how "domineering" and unabashedly talkative she is. 

I'm generally more resistant than many to express conclusions of this sort, but it's very hard in this case to avoid the impression that behavior that seems "authoritative" and "appropriate" when coming from familiar authority figures (such as all the white males on the bench Stuart Taylor hails as "brilliant") is immediately transformed into "domineering" and "egotistical" when coming from a woman who still speaks with a mild though discernible Bronx/Puerto Rican accent.  The anonymous personality smears passed on by Rosen seem to say far more about Rosen's sources (and Rosen) than about Sotomayor.  Salon's Rebecca Traister and The American Prospect's Adam Serwer both expertly highlight what are, in this case, the overt gender and ethnic overtones to the attacks on her.

What this sorry episode reveals, yet again, is just how poisonous and destructive is the reckless use of anonymous gossip-mongers masquerading as "journalism."  My own impression of Sotomayor should be of very limited value because of how confined it is to a handful of cases and because there is too much information missing to assess the reliability and objectivity of my perceptions:   How complicated were the cases I had before her?  Did her rulings advance or impede my positions?  How closely aligned are her judicial rulings with my political ideology?  Was her conduct in those cases representative of what she normally does?  What motives might I have to say good or bad things about her?   But at least I'm attaching my name to my perceptions and providing as much information as I can about the basis for those views.

By contrast, because they're hiding behind the shield of anonymity Rosen gave them, virtually nothing is known about the gossip-mongers whose chatter was passed along by The New Republic.  Rosen claims that "they're not motivated by sour grapes or by ideological disagreement--they'd like the most intellectually powerful and politically effective liberal justice possible," but there's no way for anyone to assess that.  The word "liberal" can mean something completely different to a person like Rosen, writing in a magazine whose self-described mission is to re-create the Democratic Party in Joe Lieberman's image, than it means to many, perhaps most, people.  None of Rosen's quotes is even marginally more valuable than this.

Beyond all of that, there are enough glaring journalistic breaches in Rosen's analysis -- as well as in his prior behavior in leading the crusade on behalf of John Roberts and his preemptive worry that diversity will play a role in Obama's pick -- to call into serious question how honestly and accurately he passed along these disparagements of Sotomayor's intellect and personality.  But because it's all anonymous, there's no way to examine it, impose accountability on those who are opining, or to formulate any assessments about its reliability.  Nonetheless, Rosen's gossip has, in many places, already solidified as conventional wisdom about Sotomayor:  if Obama selects her, it will mean that he has subordinated merit and intellect to gender and ethnic diversity. 

Sotomayor's decades of achievement in the face of overwhelming obstacles just gets dismissed with a few slothful, totally irresponsible smears from Rosen and his invisible friends.   But that's how "journalism" so often works -- people are allowed to remain hidden while their views and assertions are uncritically amplified in the loudest venues and bestowed with an authoritative veneer that they absolutely do not merit.


UPDATE: Just as a purely factual matter, this observation about affirmative action and the role it plays is so plainly true.


UPDATE II: I would really like to hear the crusaders on behalf of the oppression of white males -- such as Stuart Taylor, Richard Cohen, Chris Matthews and Mark Halperin -- respond to this point from Adam Serwer.


UPDATE III: It's amazing how everyone other than Jeffrey Rosen seems to have such an easy time finding first-hand assessments of Sotomayor's work and intellect that are praiseworthy.  It's enough to make one suspect that he set out on purpose to gather disparaging commentary in order to write a hit piece, and then conveyed only those remarks which comported with that objective.

Meanwhile, The Atlantic's Marc Ambinder, keeper of conventional wisdom, cites Rosen's piece -- and nothing else -- in order to announce that "the respectable intellectual center . . . . is beginning to have doubts" about Sotomayor's nomination.  Ambinder entitles his article "Sotomayor's Public Image At Risk, Early" and claims "nobody" is defending her.  The Nation's Chris Hayes points out the obvious in a Twitter question to Ambinder:  "One gossipy article from Jeff Rosen means 'the respectable intellectual beginning to have doubts.' Really?"  Ambinder's article will undoubtedly now be cited as evidence of "reports" that there are "growing doubts" about Sotomayor's fitness for the Court -- all based on basically nothing.  It's all such a bright microcosm of the sad spectacle known as "establishment media discourse."


UPDATE IV:  Jeffrey Rosen's brother-in-law is Neal Katyal, the current Deputy Solicitor General in the Obama administration.  If Sotomayor's prospects are torpedoed, that could clear the way for one of the other leading candidates to be named to the Court:  current Solicitor General Elena Kagan.  The selection of Kagan (rather than Sotomayor) would almost certainly result in Rosen's brother-in-law (Katyal) becoming Solicitor General.  Additionally, Katyal himself was once a clerk for a Second Circuit judge, obviously raising the question of whether he was one of the anonymous sources for his brother-in-law's hit piece disparaging Sotomayor's intellect and character.

One can question whether this Rosen/Katyal relationship should have been disclosed by TNR (on balance, it was probably unnecessary), but at the very least, these are illustrative of the types of problems that inevitably arise when anonymous sources are used so casually in a political culture rife with incestuous relationships and conflicts of interest.


UPDATE V: I have sent TNR's editor, Franklin Foer, an email with questions regarding some of these matters, which can be read here.  I will, of course, post any reply. I've now added Foer's reply and my follow-up email to him.

Email to TNR Editor Franklin Foer:

From: Glenn Greenwald

To: Franklin Foer

Sent: Wednesday, May 6, 2009 1:25:43 PM GMT -02:00 Mid-Atlantic

Subject: Questions about Jeffrey Rosen

Frank -- As you might know, Jeffrey Rosen's brother-in-law is Neal Katyal, currently the deputy to Solicitor General Elena Kagan, a leading candidate to be nominated to the Supreme Court. Katyal would almost certainly be promoted to Solicitor General if Kagan were selected for the Court.  Additionally, Katyal was a clerk on the Second Circuit and thus within the narrow source category Rosen identified as the basis for the criticisms he conveyed against one of Kagan's key competitors for that spot, Sonia Sotomayor.

Is Rosen's relationship with Katyal going to be disclosed as part of Rosen's on-going examination of possible Supreme Court nominees?  Doesn't Katyal (and therefore Rosen) have a personal interest in having Kagan selected, as opposed to Sotomayor and others? And if Katyal was one of the people anonymously disparaging Sotomayor through Rosen (and I obviously don't know if he was), isn't that something that, at least in general, should be disclosed (i.e., that one of Rosen's sources has such a clear career and personal interest in torpedoing Sotomayor's nomination)?  Thanks -

Glenn Greenwald


Email response from Foer:

From: "Frank Foer" <>


Sent: Wednesday, May 6, 2009 3:21:54 PM GMT -02:00 Mid-Atlantic

Subject: FW: Questions about Jeffrey Rosen

Glenn, Thanks for the note. I believe that Jeff is writing about Kagan next. And, of course, he'll disclose his relationship to Neal Katyal in that piece. Best, Frank


Follow-up email to Foer:

Thanks for the response - what about the issue of using Katyal as an anonymous source to disparage competitors of Kagan's, such as Sotomayor? I'm not asking if Katyal was a source of Rosen's, just whether that's something that should be disclosed (either specifically or in describing his motives generally) if Rosen did use him as a source?

By Glenn Greenwald

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