Anatomy Of A Sotomayor SCOTUS Whisper Campaign

May 6, 2009 11:56 a.m.

The campaign against Second-Circuit Court of Appeals Judge (and potential SCOTUS nominee) Sonia Sotomayor began in earnest when nameless former clerks on that court told The New Republic‘s legal correspondent Jeffrey Rosen that the Hispanic judge (and one-time George H.W Bush appointee) is too temperamental–and not intelligent enough–to serve on the Court.

I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The charges have been challenged loudly–almost immediately after the article came out, other people familiar with her work came forward to call the piece baseless. But once the cat was out of the bag, there was no stuffing it back in. Almost immediately, conservatives picked up and…advanced…the meme. National Review‘s Mark Hemingway called her “dumb and obnoxious,” inviting a classy riposte from his colleague John Derbyshire, who cautioned that “Judge Sotomayor may indeed be dumb and obnoxious; but she’s also female and Hispanic, and those are the things that count nowadays.”

To The Atlantic‘s Marc Ambinder, this represented evidence that “Sotomayor’s public image [is] at risk” and today the Washington Post quoted an anonymous lawyer, supposedly involved somewhat tangentially in the Justice Souter replacement process, saying Sotomayor will be battling the perception that she “doesn’t play well with others.”

But the coup de grâce may have come last night when Sotomayor bashing traveled outside the beltway, and on to the Late Show, where David Letterman portrayed Sotomayor as a Spanish-speaking version of Judge Judy. Watch:

What remains unclear is what, precisely, has animated the whisper campaign. Glenn Greenwald raised one intriguing suggestion:

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.

But Katyal served as a clerk on the Second Circuit in 1995 and 1996, two years before Sotomayor was belatedly confirmed to the court on October 2, 1998 by a Republican-controlled Senate. I spoke to Rosen by phone today, and he characterized things differently from Greenwald. He says Katyal was not one of his sources. He confirmed that a number of people–former clerks and federal prosecutors–approached him in a span of about two weeks, each voicing similar concerns about Sotomayor’s temperament and fitness. He says that they were nearly all Democrats and doubts that they were animated by any ulterior motives. But, he says, he will soon be addressing the controversy on The New Republic’s website, and we’ll bring that to you when it goes live.

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