Jeffrey Rosen and TNR's response to critics

The author of the slimy hit piece on Sonia Sotomayor purports to address criticisms while ignoring most of them and distorting the rest.

Published May 7, 2009 6:32PM (EDT)

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

Jeffrey Rosen and The New Republic really are owed a debt of gratitude for shining a light on how shoddy, arrogant, non-responsive and deliberately misleading so much of our establishment "journalism" really is.  Rosen purports to respond today to what he condescendingly refers to as the "energetic response in the blogosphere" to his anonymity-dependent attack on Sonia Sotomayor's intellect and judgment.  Rosen doesn't deign to name any of the critics and links to only a couple in passing, and is thus free to ignore many of the serious ethical problems and factual errors in his "reporting" raised by numerous commentators and to distort that which he does address.  Rosen takes full advantage of that freedom:


(1) The single most serious charge against Rosen was raised by Law Professor Darren Hutchinson, who conclusively documented that one of the very few verifiable factual assertions Rosen included was, as Hutchinson put it, "patently untrue."  Specifically, Rosen claimed that a footnote from a "senior judge on the Second Circuit" accused Sotomayor of "misstating the law" and "misleading litigants."  But the footnote did no such thing -- not arguably, not remotely.  It's simply a factually false claim by Rosen, as documented by a fellow law professor.

In reply, Rosen simply asserts (with no reasoning at all) that there is more than one way to read that footnote, and then defends his characterization of it by claiming that his secret sources told him that the footnote was "widely understood" to be intended as a criticism of Sotomayor.  Here we have the essence of the modern establishment journalist:  they see their primary role as writing down what Serious people tell them to write down, instructions issued from behind the veil of anonymity, and they then publish it as though it is fact.  That, in essence, is what Rosen's entire piece was, and it's what made it so shoddy and wrong.  The fact that these tactics were invoked in service of maligning someone's intellect and character made it that much worse.


(2) Rosen's principal excuse for passing on anonymous disparagements of Sotomayor -- that "anonymous comments aren't ideal, but there was no other way, in this situation, to get people to share candid questions about judicial temperament" -- is blatantly false.  There are numerous categories of lawyers with first-hand knowledge of Sotomayor who have no reason to fear expressing their views of her -- retired lawyers, lawyers no longer in private practice, law professors, lawyers who no longer work in law at all, lawyers whose practice would not be affected by expressing critical views of her (as but one example:  I practiced in the Second Circuit for more than 10 years, with several cases in front of Sotomayor, but obviously felt no compunction about sharing both positive and negative impressions of her with my name attached; there are numerous other people in that situation had Rosen bothered to look).

Getting a few people to chatter with the promise of anonymity is certainly the least burdensome way to get people to say bad things about someone.  It's easy to understand why an extremely slothful "journalist" with no standards would opt for that path.  But to claim that this is the only way to obtain candid assessments of a judge is clearly untrue. 

Even if that claim were true, Rosen's mentality illustrates the decay that lies at the core of modern journalism.  In his view, it's better to write a story using completely unreliable and discredited methods than it is to simply refrain from writing the story at all (well, the alternative to writing an unreliable piece was to write nothinghe argues, as though that's exonerating).  Publishing a hit piece on someone's character and intellect using unreliable methods is infinitely worse than refraining from writing a story at all until you can get people to speak on the record and thus ensure there's accountability.  But if you're desperate for attention and care only about being the first person to write a story, then standards of truth and reliability don't matter.

Moreover, the notion that anonymity breeds candor is an absolute myth; oftentimes, people feel the freest to lie and speak recklessly precisely because they are able to do so with no accountability.  Worse, relying exclusively on anonymous sources allows a reporter to manipulate and distort what he's been told.  If Rosen and Frank Foer don't understand that, they should ask Judy Miller about how all that works.  There are all sorts of motives someone might have to smear Sonia Sotomayor; there are all kinds of reasons to doubt their good-hearted "liberal" allegiances or the depth of their knowledge or expertise necessary to make their assessments worthwhile.  But anonymity prevents those assessments from being made, forcing the reader instead to blindly rely on the judgment and honesty of the reporter -- something which, in this case, one would do only at their great peril.

(3) Rosen claims that he began his hit piece on Sotomayor when he was contacted by "eminent liberal scholars [he] knows and trust[s]" who "closely follow Sotomayor's work and expressed questions about her temperament."  These eminent legal scholars then put him in touch with former clerks and prosecutors who shared these concerns.

Why couldn't these "eminent legal scholars" who have such close familiarity with Sotomayor's work speak on the record and express their concerns?  How cowardly are they?  They care enough about smearing Sotomayor to call Rosen out of the blue, "express concerns" about her behavior, and do the legwork of putting Rosen in touch with their handpicked friends who also don't like Sotomayor -- but they're afraid to speak publicly on such a matter of public interest?  They don't sound like "eminent liberal legal scholars" to me; they sound like cowardly character assassins carrying out a vendetta that Rosen eagerly helped to advance.


(4) Rosen dismisses the issue of his relationship to Neal Katyal as nothing more than my "conspiracy-minded suggestion" by denying that Katyal was one of his sources.  But the principal issue I raised -- via email with Foer and in emailed questions to Rosen (which he did not answer) -- was why that relationship was not disclosed given that Katyal stands to benefit if Obama selects Elena Kagan rather than Sotomayor.  Foer told me in his response that Rosen would disclose this relationship when he writes about Kagan.  Foer apparently thinks Rosen's relationship to Katyal is relevant when Rosen writes about Katyal's boss, so wasn't it also relevant when Rosen was trashing the reputation of one of Kagan's principal competitors for the Supreme Court?

Moreover, one can mock questions about sources as "conspiracies," but that's the whole point of anonymity:  Rosen is able to write an entire article based on unseen, unidentified, unaccountable people.  He shouldn't be surprised when people start speculating about who these chatterers are and even how accurately or fairly Rosen is conveying their chatter.  Responsible journalists avoid being subject to speculation of this sort by using anonymous sources only in the most compelling cases, rather than the low-level gossip column methods on which Rosen's entire piece was based.  (Rosen also did not address the fact that his wife works for a far right organization to which Rosen himself spoke about Supreme Court nominees).  Even if limited anonymity could be justified to smear Sotomayor, Rosen's various incestuous relationships and motives make his reliance on anonymity particularly susceptible to suspicion.


(5)  One of the principal criticisms of Rosen's article was that he admitted that he had not bothered to familiarize himself with Sotomayor's actual work. The notion that he should have done so before writing an article questioning her judicial abilities still is something he cannot even acknowledge, let alone accept.  Modern standards of establishment journalism have eroded so severely that they actually now think that admitting their sloth and lack of any basis for what they "report" is some sort of grounds for praise.

* * * * *

What really happened here is now manifest -- and typical.  A couple of Rosen's secret friends don't like Sonia Sotomayor and called him to encourage him to smear her in the pages of The New Republic.  Rather than do the work to determine if these "questions" about her abilities had merit -- by, say, conducting a thorough survey of her key judicial opinions the way a conscientious law professor might -- he instead set out dutifully to undertake the mission assigned to him by these "eminent legal scholars" by calling the people they handpicked for him, who then eagerly attacked Sotomayor.  Rosen then mindlessly wrote it all down -- including facts that were either false (the footnote) or highly distorted (Judge Cabranes' New York Times statement about Sotomayor, which was clearly a compliment, not a criticism), and then sent it to TNR, which slapped a provocative and (by Rosen's account) misleading headline on it and then happily published it.  That Rosen himself was a chief champion of John Roberts, and had already expressed concerns that Obama might take diversity into account when appointing someone to the Supreme Court, undoubtedly made Rosen more than happy to be chosen to carry out this dirty task against someone who is most assuredly not part of his circle.

In other words, Rosen did what the modern journalist of the Respectable Intellectual Center does by definition:  he wrote down what Serious People told him to say, agreed to protect their identity, and then published their very purposeful chatter without doing any real work to verify, investigate or scrutinize it.  As a result, a woman who spent the last four decades of her life using her talents and intellect and working extremely hard to reach amazing heights in the face of great obstacles is now widely viewed as an intellectually deficient, stunted, egotistical affirmative-action beneficiary who has no business being on the Supreme Court -- all thanks to the slimy work of Jeffrey Rosen, his cowardly friends of the Respectable Intellectual Center, and The New Republic.

And even now that numerous people have pointed to the multiple factual errors and shoddy claims on which the whole piece was based, it all gets dismissed away in a few non-responsive paragraphs as nothing more than the hysterical reactions from the conspiracy-addled, un-Serious dirty masses of the blogosphere.  Cowardly, eminent legal scholars and media stars from the Respectable Intellectual Center will continue to see Rosen as someone Serious, and ultimately, that's all that matters.


UPDATE: The link which Frank Foer emailed me, alerting me to the fact that Rosen's response had been posted, was to the two-paragraph blog post by Rosen, not the full response which TNR published today (that's here), which contains a few more paragraphs.  In those added paragraphs, Rosen addresses the issue of the footnote; he includes a link to a Media Matters post criticizing his article; and also claims that he had more knowledge of Sotomayor's work than he stated in his article, including having read a few opinions written by her (which he found "good but not great") and having consulted the Almanac of the Federal Judiciary which contains anonymous input about her that he says is consistent with what his sources told him.  He mentioned none of that in his original piece.

Rosen's assertions about the added information he now claims he had squarely contradicts his principal self-defense here:  that there was no way for him to have written a meaningful assessment of Sotomayor without quoting anonymous sources who trashed her.  Quite obviously, he could have and should have done what he now claims he began to do:  read her opinions, consult published sources about her abilities, and then state his opinions by citing the evidence for it.  After that, if he thought it was necessary, he could get people to speak on the record about Sotomayor.  Allowing people to malign her anonymously was, by far, the least reliable of the methods to use, yet it was the one on which virtually the entire piece was based.  The fact that he now claims he had other methods available to him simply bolsters the conclusion that there was no justification for passing on malignant gossip from hidden sources masquerading as Serious analysis.


UPDATE II: The New Yorker's Amy Davidson documented numerous other flaws in Rosen's initial piece, with a focus on his clear distortion of Judge Cabranes' quote about Sotomayor (referenced above).  But as Media Matters notes, Rosen ignored that issue in his response even though the allegation was rather serious:  namely, that Rosen "cropped a comment by judge Jose Cabranes to make it appear as though Cabranes was critical of Sotomayor's intellect - and that, in fact, the full quote included praise for Sotomayor's intelligence."

Meanwhile, TPM's Brian Beutler notes that, having been widely chided, Rosen today virtually reversed himself concerning his assessment of Sotomayor's fitness, from the original piece's warning that "given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble," to today's praise that "Sotomayor is an able candidate--at least as able as some of the current Supreme Court justices--and if Obama is convinced she is the best candidate on his short list, he should pick her."  That, I suppose, is progress -- as well as a testament to the growing ability of those outside the Respectable Intellectual Center to impose checks on what they do -- but, I suspect, the damage to Sotomayor's reputation from Rosen's recklessness has already been done.


UPDATE III: John Cole, as usual, cuts to the heart of the matter.


UPDATE IV:  A TNR commenter perfectly summarizes Rosen's defense of his false claims about the footnote:

Shorter Rosen: Yeah, that footnote I mentioned doesn't actually say that Sotomayor misread the law or misled anyone, but my anonymous friends have assured me that the court was actually writing in a secret code that only they can understand and in which they in fact slammed Sotomayor's intellect and competence. So as you can see, no correction is necessary.

Then again, Rosen is a member of the Respectable Intellectual Center and his friends are Eminent Legal Scholars (so Eminent that they are hiding), so perhaps they can see things in the footnote that ordinary literate people are unable to detect. 


UPDATE V: Professor Hutchinson, who was the first to highlight how false was Rosen's claims about the footnote, today does the same with regard to Rosen's self-defense that the footnote can be read in different ways and that, regardless of the words, his secret sources assured him that the intent was to criticize Sotomayor.  After laying bare the emptiness of Rosen's "response" today, Hutchinson concludes:  "Finally, after two essays, Rosen still has not analyzed one opinion written by Sotomayor. This glaring omission completely undermines his evaluation of her."

There is a very legitimate question here as to whose reputation Rosen has harmed more -- Sotomayor's or his own.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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