Tuesday, May 26, 2009

Group Dynamics and the Court

President Obama has selected Sonia Sotomayor to replace David Souter on the Supreme Court. Since every good amateur pundit needs to have an opinion on the matter, here's mine:

From what I can gather, she is pretty much a doctrinaire liberal. Since there was almost no chance that Obama would nominate someone who wasn't, it's hardly surprising. The best repository of criticism that I've been able to find about Sotomayor comes from Jeffrey Rosen's piece in The New Republic. The primary argument seems to be about judicial temperament.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue."
In other words, she is the anti-Clarence Thomas. Rosen further reports:

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.
This is the key point. Sotomayor, if confirmed, is likely to be a suitable (for liberals) replacement for Souter. She is also unlikely to change the group dynamics of the current Court, nor would she move the needle in any real way.

My view is that group dynamics are especially important for this Court. The four conservative justices -- Scalia, Thomas, Roberts and Alito -- are pretty much of the same mind. The liberals -- Ginsburg, Breyer, Stevens and Souter -- are also pretty much of the same mind. The swing vote is inevitably Anthony Kennedy. Kennedy's style of judging is (to be charitable) a bit idiosyncratic and my sense is that he's often less likely to look at the law than at the tone of the argument that's been made. My fear was that if Obama had picked a liberal with strong persuasive skills that might make it easier to influence Kennedy, and by doing so he could have changed the balance of the Court with this pick. I don't see Sotomayor doing that, especially if she is as personally abrasive as it appears.

President Obama is going to get two more picks soon -- Justice Ginsburg is quite ill and Justice Stevens is quite old. The next pick could be a game-changer. Here's the name to watch: Cass Sunstein.

4 comments:

Anonymous said...

Rosen's hack piece relies almost entirely on anonymous sources, and in the one instance where it does not, Rosen carves up a quote from a colleague of Sotomayor's, excluding the parts of the quote that extolled her virtues.

Come on, I think you can do better than that. Criticize her on her silly gender and ethinicity based statement about Latina women being better positioned to render judgment from the bench, or her statement about Appellate Judges legislating from the bench(which, whether you like it or not is pretty much true). But the Rosen piece is shameful, as it is based on nothing but anonymous gossip. Take a look at it yourself - it IS nothing but anonymous gossip. And, not surprisingly, all of the anonymous hearsay just happens to conform to lots of stereotypes about Hispanic women: not very smart, overly emotional and combative, et cetera.
Are we really supposed to believe that a woman who graduated valedictorian of her Catholic High School class, summa cum laude from Princeton and Editor of the Law Review at Yale is not very bright?
BTW, Rosen has spent much of the last few weeks trying to distance himself from his article.

Rich

Mark Heuring said...

Rich,

Read what I wrote. I wrote that the piece was the "best repository of criticism" in re Sotomayor that I've found. What I took from the piece, and what I wrote about, is her judicial temperament and the potential impact it might have on the Court.

No one questions her intelligence -- you don't get to be an appellate court justice if you aren't whip smart. And I know plenty of combative white dudes who sometimes let emotion impinge on their arguments, including one or two who comment on this blog. :) And, to be fair, the same charge holds true to the proprietor of this blog from time to time. There's nothing inherently Hispanic or female about those traits.

We're going to find out if any of the anonymous criticisms have any merit or not soon enough, because she's going to be confirmed, barring something catastrophic. But I stand by my contention that she won't move the needle on the Court very much.

Anonymous said...

Mark,
I actually agree with much of what you wrote...maybe not for the same reasons you cite...but you are right to note that Sotomayor won't move the needle much. But given the equilibrium on the court, I don't know that any left-leaning judge replacing one of the 4 lefties, or right-leaning judge replacing any one of the righties will move the needle much. My point was that the Rosen piece was a total hack piece, and you should have recognized that before citing it. You correctly nailed me a few months back for citing an anonymously sourced hack piece by Hilzoy on Palin, so I was just returning the favor;}

Lastly, as a Conservative, you are 100% correct to be nervous about Sunstein. That guy could turn into the next Hugo Black.

Regards,
Rich

Mark Heuring said...

My point was that the Rosen piece was a total hack piece, and you should have recognized that before citing it. You correctly nailed me a few months back for citing an anonymously sourced hack piece by Hilzoy on Palin, so I was just returning the favor;}

Fair enough. There is one difference, but it's minor: these sorts of anonymous comments are made for a specific reason, which is that lawyers might find themselves in front of the judge at some point in the future. But of course you are correct that anonymous sources are at best problematic, so I'll accept your brickbat.

Lastly, as a Conservative, you are 100% correct to be nervous about Sunstein. That guy could turn into the next Hugo Black.

I'd prefer that; I'm more concerned that he'd be the new William Brennan. If I were a betting man, I'd be willing to wager at least a quarter that Sunstein will get the call at some point before 2012, probably for the Stevens seat.