Last month Jeffrey Rosen, legal affairs editor for the liberal journal
New Republic, interviewed former clerks for judges on the U.S. Court of
Appeals for the Second Circuit, on which Sonia Sotomayor has served
since 1998.
She is "not that smart and kind of a bully on the bench," one former
clerk told Mr. Rosen. "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," said another.
"I've read about 30 of her opinions," George Washington University
constitutional law professor Jonathan Turley, a Democrat, told MSNBC's
David Shuster. "They are notable in one thing and that is a lack of
depth."
"Evidently, the characteristics that matter most for a potential nominee
to the Supreme Court have little to do with judicial ability or
temperament, or even so ephemeral a consideration as knowledge of the
law," said University of Chicago law professor Richard Epstein.
President Obama had little to say about Ms. Sotomayor's judicial ability
and temperament when he announced Tuesday he was nominating her to
replace Justice David Souter, who is retiring. He praised her
"compelling personal story," and her "empathy" on the bench.
Ms. Sotomayor's "compelling personal story" is a better qualification
for being a guest on Oprah than for being a Supreme Court justice. Her
"empathy" — a euphemism for bias — should be a disqualification.
Empathy for particular groups is incompatible with the concept of equal
justice under law. The job of a judge is to apply the law fairly, not
to tilt the scales of justice in favor of one party or another.
Justice Oliver Wendell Holmes was noted for his judicial ability and
temperament. Columnist Thomas Sowell noted that after he had voted in
favor of Benjamin Gitlow in the 1925 case of Gitlow v. New York, Justice
Holmes told a friend he had just voted for "the right of an ass to drool
about proletarian dictatorship." (Mr. Gitlow, a Socialist, had been
charged with "criminal anarchy." The Supreme Court ruled his arrest
violated his right to free speech.)
"I loathed most of the things in favor of which I decided," Mr. Holmes
said on another occasion. But he ruled as he did because a judge's job
is "to see that the game is played according to the rules whether I like
them or not."
Under our system, it's the job of legislatures to make the rules, the
job of judges to apply them. But Ms. Sotomayor apparently thinks judges
have the right to substitute their opinions for those of lawmakers.
"The court of appeals is where policy is made," she said at a seminar at
Duke University in 2005.
"I would hope that a wise Latina woman with the richness of her
experiences would more often than not reach a better conclusion than a
white male who hasn't lived that life," Ms. Sotomayor said in a speech
in Berkeley in 2001.
"Invert the placement of 'Latina woman' and 'white male' and have a
conservative say it. A career would be finished," noted former Bush
aide Karl Rove.
Despite her shortcomings, Ms. Sotomayor is all but certain to be
confirmed. And for conservatives, this isn't so bad. She'll likely be
a 100 percent liberal vote, but she's replacing a 100 percent liberal
vote.
What the former clerks to whom Jeffrey Rosen talked wanted was a liberal
with the intellectual firepower to challenge Justice Antonin Scalia.
Ms. Sotomayor isn't that.
Former Bush speechwriter David Frum noted on his blog that the swing
vote on the Court, Judge Anthony Kennedy, a Reagan appointee, has been
drifting leftward in part because of his irritation at Justice Scalia's
often acerbic manner.
Since any Obama nominee would be liberal, conservatives should be hoping
he chooses a personally obnoxious liberal, one who will "irritate
Kennedy and push him careening back rightward," Mr. Frum said.
"If Jeffrey Rosen's reporting is correct, Sotomayor was almost
unanimously disliked by her colleagues on the Second Circuit and even
more by their clerks," Mr. Frum said. "So who could be better?"
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