The Case Against Jeffrey Rosen

Jeffrey Rosen's now infamous piece on Second Circuit Appeals Court Judge Sonia Sotomayor has led to many evaluations of Rosen's intellect and qualities as a legal journalist. The consensus appears to be that Rosen is deficient and not considered a reliable source of information and analysis in this area.

Glenn Greenwald writes:

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.

Professor Darren Hutchinson noted:

Given Rosen's background in law, it might surprise many readers of his essay that Professor Rosen does not offer his own independent analysis of Sotomayor's rulings to support his condemnation of her candidacy. Instead, Rosen admits his own ignorance regarding Sotomayor's jurisprudence and the limits of the group of persons he interviewed. . . . Despite his admitted lack of knowledge regarding Sotomayor's judicial record, Rosen urges President Obama to "satisfy himself that he has a complete picture before taking a gamble." Rosen has described Sotomayor as a "gamble" even though he admits that he has incomplete knowledge of her record as a judge. Reaching a conclusion about a person without knowledge or with incomplete knowledge of the individual's qualifications seems like a standard example of prejudice, but readers can draw their own conclusions about Rosen's motivation.

While Rosen does not independently analyze Sotomayor's jurisprudence, he mentions two cases that supposedly raise questions about her capabilities. First, he cites to a footnote in an opinion written by Judge Ralph Winter, a senior judge on the Second Circuit, which discusses a case that Sotomayor authored. Rosen says that the footnote is "unusual" and that Judge Winter finds that Sotomayor's opinion "might have inadvertently misstated the law in a way that misled litigants."

Rosen's assertion is patently untrue, and it grossly distorts the footnote's language. Winter's footnote is not "unusual." Instead, the footnote chides lawyers for misreading Sotomayor's ruling and for trying to expand the case beyond its holding [. . .]

The New Yorker's Amy Davidson noted:

We’re just getting started with the possible replacements for Justice Souter—but Jeffrey Rosen’s “The Case Against Sotomayor” is really a bit much. To review, Sonia Sotomayor sits on the U.S. Appeals Court. She was raised in difficult circumstances in the South Bronx, and is Hispanic. Rosen writes:

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. . . . The Second Circuit judge Jose Cabranes, who would later become her colleague . . . The Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.”

Actually, Cabranes was making a different point. Here’s the part of his quote that Rosen—oddly enough—omits: “She’s tough and tenacious as well as smart.” That “smart” bit would have been helpful in a piece about whether she’s smart. . . . Also: “Charitably” is just the wrong word to describe how Cabranes speaks of Sotomayor (the Times notes, as Rosen does not, that he was “a mentor and former professor of Sotomayor’s at Yale Law School”), but it is of a piece with Rosen’s condescension. She got herself from the South Bronx to Princeton where—let’s say this before the affirmative-action gears start turning—she graduated summa cum laude, and to Yale, where she was an editor on the Yale Law Journal. She probably got financial aid—perhaps that’s charitable, and perhaps Rosen, indirectly, was reminding us of that. A person could spend a lot of time unpacking the assumptions about race, class, and gender underlying his piece (do tough questions sound less grating in a male, Massachusetts accent?), but the process is more likely to be tiring than edifying. Here’s one question, though: Is the problem that she won’t fit in at D.C. dinner parties? We keep hearing about how Souter didn’t like those, so maybe that’s just fine.

At this point, there are many insinuations being bandied about about Rosen's motivations in writing his piece (they run the gamut from familial connections (his brother in law stands to move up to Solicitor General should another possible candidate, current SG Elena Kagan, be elevated to the Court) to ethnic and gender prejudice. Greenwald noted that Rosen was a staunch defender of Chief Justice Roberts and raised concerns that President Obama may be too concerned with "diversity."

The evidence seems spotty on drawing any conclusions about Rosen's motivations. However, it is not too soon to draw conclusions about the value of Rosen's work in evaluating judicial candidates. His judgment on Chief Justice Roberts was spectacularly wrong. His piece on Judge Sotomayor has been exposed as shoddy and an embarassment. John Cole's judgment on the episode is interesting:

The thing that really stands out for me is that this was so urgent, so vital, so important, that the TNR and Jeffrey Rosen had to smear this woman BEFORE SHE WAS EVEN THE NOMINEE. It wasn’t just that the initial piece was riddled with errors, that it was based on the catty and cowardly chatter of anonymous law clerks, nor that it was such an obviously fact-free smear job that even the Powerline refused to give it any weight and dismissed it as a “gossipy report,” but what seems so particularly egregious to me is that all of this was done before she was even the nominee.

This has irreversibly changed her life, her workplace conditions, and her relationships with the people she works with right now, and she may never be nor was ever in line to be the nominee. Regardless, thanks to Rosen and the editiorial genius of Franklin Foer, a substantial portion of the country has been presented a portrayal of her as “an intellectually deficient, stunted, egotistical affirmative-action beneficiary.” . . . What Rosen and these anonymous sources did to her was not only unprofessional and inexcusable, it was cruel and it was a pre-emptive smearing. How would any of you like a whisper campaign published against you in the TNR for a position you aren’t even seeking or probably aren’t even in line to receive? How would Jeffrey Rosen like it?

(Emphasis supplied.) I think and hope Cole is wrong about the effect on Sotomayor. The energetic, eloquent and persuasive defenses of Sotomayor's judicial qualities and intellect have, in my view, instead reversed the focus onto Jeffrey Rosen himself and his intellectual and professional deficiencies.

It is my view that it is Jeffrey Rosen whose reputation will never be the same after this episode. The case made against Jeffrey Rosen and The New Republic is strong. His response was weak and illogical.

It seems clear to me that anything Rosen now writes on this subject will simply not be treated as "serious." Greenwald writes:

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.

(Emphasis supplied.) Again, I believe and hope Glenn is wrong but I do think the damage Rosen has done to himself is not likely to be reversed.

Speaking for me only

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    Unlike the "soruces" inh Rosen's piece (5.00 / 1) (#1)
    by Big Tent Democrat on Thu May 07, 2009 at 08:01:21 PM EST
    Critics of his piece have been quite willing to speak on the record criticizing Rosen.


    Not interesting. None of his critics ... (none / 0) (#6)
    by RonK Seattle on Thu May 07, 2009 at 10:42:07 PM EST
    ... have to practice before Rosen. Given their respective positions, it is not reasonable to expect that any of them they would criticize Sotomayor on the record.

    Given their respective positions, there is no reason any of his critics would be reluctant to criticize Rosen on the record.

    The comparison is of no interest whatever, except as it betrays your determination to find against Rosen.

    Likewise the rest of the "case" against Rosen. Three of your excerpts misstate the record; two declaim in ignorance of Rosen's rejoinder; one whines (and illogically at that) about the timing of his piece; and one merely quibbles with an adjective he attached to a 14-year-old comment.

    All of them appeal to principles of inference and judgment that we'd recognize as novel, or even radical, if we saw them applied to other subjects -- or indeed to this subject if only Rosen had formed a complimentary opinion by the same process.

    By putting "sources" in quotes, I suppose you mean to imply he has none -- a very bald claim on your part.

    Without regard to the merits of Rosen's assessment of Sotomayor, this "case against Rosen" is a case of wet tissue paper ... the sort of thing one lobs at an adversary's house when one has nothing better at one's disposal.


    Silly comment (none / 0) (#15)
    by Big Tent Democrat on Fri May 08, 2009 at 05:53:47 AM EST
    I see thi will be another one  of these episodes from you.

    I'll ignore you on it.


    I'm glad to see this post, and I'm (5.00 / 1) (#2)
    by Anne on Thu May 07, 2009 at 08:25:46 PM EST
    glad to see the pushback against Rosen.

    One has to wonder what could possibly have been so important that he was willing to stoop to the level he did, and part of me hopes that his attempt to make it all better won't restore his credibility.

    The tactics Rosen sunk to in his execrable article can be seen, to some extent, all across the media; anonymous sources are everywhere and seem to be able to be trotted out at will to push whatever meme or agenda someone decided would rule the day.  It's gotten to the point where I don't trust anything that isn't sourced.

    I wonder if Rosen realizes that by going on the record, those speaking out against him and his writing are delivering a powerful message; I don't think it will undo the damage Rosen has done to Sotomayor, but I'm glad Rosen is paying a price.

    So Jeffrey Rosen (5.00 / 1) (#3)
    by lilburro on Thu May 07, 2009 at 09:52:56 PM EST
    went headhunting for a Latina judge and is now going to pretend he didn't.  Whoop-e-ding.  What he's written is an incredibly long correction.  He should still be ashamed of himself, IMO.  And he has created a standard that makes little sense:

    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.

    So Sotomayor can't just be as good as everyone else.  Truly, I do not understand how Rosen can frame the issue this way without realizing he is giving ammunition to the conservative (or even liberal) smearers (who he doesn't even acknowledge in his 'correction' piece).

    And he's still misleading:

    I was satisfied that my sources's concerns were widely shared when I read Sotomayor's entry in the Almanac of the Federal Judiciary, which includes the rating of judges based on the collective opinions of the lawyers who work with them. Usually lawyers provide fairly positive comments. That's what makes the discussion of Sotomayor's temperament so striking. Here it is:

    What follows is an entire paragraph of negative comments (8 total) and two comments in her favor.  This is "balanced."  And he wants to grade Sotomayer - who is, in his opinion too pedestrian - to the "typical" reception judges get.  Choose a measuring stick already.

    Finally Rosen has no cred because he started from such a negative standpoint that his new "learning experiences" about Sotomayor are only going to be directed at proving his point - she's a nasty woman who would suck as a Justice.  If Rosen just wants to spout off his prejudices he should do so.  But he shouldn't pretend to be telling us anything about anyone but himself.

    His "correction" is more of a defense (5.00 / 0) (#4)
    by Anne on Thu May 07, 2009 at 10:20:50 PM EST
    of what was already pretty indefensible.

    I don't know how plausible it is that "so many" respected jurists turned to Rosen - I mean, why go to him?  And why now?  Sotomayor isn't even a nominee - she's just a name that has been floated as a possibility.

    And really - are we supposed to believe that Rosen thought Obama needed someone to alert him to "temperment" issues?

    I really hate it that Rosen proceeds from an assumption that most of us are just so stupid that we would not see through his lame attempt to justify his original screed.


    Liberal gossip mag? (5.00 / 1) (#5)
    by lilburro on Thu May 07, 2009 at 10:34:05 PM EST
    Rosen now says he's read more of her opinions, but refuses to make his views on those opinions explicit.

    So we're back to "temperament."  Somehow I get the sense that Sotomayor's "temperament" won't come off very well were Rosen ever gutsy enough to sit down with her for an interview.

    And still, if you're going to discuss temperament, at least define it well.  Even now, I have no idea what Rosen sees in Sotomayor that would make her temperamentally incapable of arguing with other SC Justices.


    May I ask: are you an attorney? (none / 0) (#7)
    by oculus on Thu May 07, 2009 at 10:46:11 PM EST
    IMO, "judicial temperment" is a an extremely important quality for anyone on the bench, although the lack of same is most evident on the trial bench.

    Well (none / 0) (#8)
    by lilburro on Thu May 07, 2009 at 11:35:43 PM EST
    if temperament is important, define it carefully - especially if you're working on an attack piece that can easily be read as an attack on affirmative action.  "A judge on the U.S. Court of Appeals for the Second Circuit, Sonia Sotomayor's biography is so compelling..." is how Rosen's first article starts.

    What does Rosen want in a judge?  Why does he keep changing the yardstick so Sotomayor always fails?  That's the issue I'm having.

    And is Rosen writing for a law audience, or a general audience?  The latter.  Yet another reason why his inability to portray "judicial temperament" is such a massive failure.


    I think he defines it as: she dominates (none / 0) (#9)
    by oculus on Thu May 07, 2009 at 11:43:24 PM EST
    at oral argument and won't let others talk.  That isn't my definition though.

    Tho the 'bullying' style is SOP on SCOTUS (none / 0) (#22)
    by RonK Seattle on Fri May 08, 2009 at 03:17:27 PM EST
    ... in contrast to district court.

    In the main, it is artful, purposeful bullying ... but sometimes you'd like to hear the advocates complete a sentence.

    I found it eye-opening that "Only 11 of the 110 justices in our history have been federal trial court judges" (and none on today's SCOTUS).


    Hysterical reaction (5.00 / 1) (#10)
    by koshembos on Thu May 07, 2009 at 11:49:53 PM EST
    Rosen most damning argument is that Sotomayor does not, in her opinions, demonstrate an exceptional talent. He bases this claim on reading many of her written opinions. It's amazing to see the hysterical reaction to this judgment which seems to stem from a fanatical adherence to political correctness manifested by his critics.

    Even of Rosen is wrong in his assessment, he has the right to express it without his character being assassinated by those who disagree with him.

    It also shows how intolerant we have become on both the right and the left.

    Really? Did you read his (5.00 / 1) (#11)
    by oldpro on Fri May 08, 2009 at 12:36:50 AM EST
    first post?  All anonymous gossip.  Sophomoric and mostly hostile/negative.  No substance at all.  Not informative.  Not entertaining.  Not helpful in any way.  Just gossip.

    Now he wants to have it both ways...NOW we get his substantive view...sort of.  A pathetic attempt to take it back...sort of.

    I'm with Greenwald and every other critic of this blather masquerading as punditry.  This isn't column-writing 101...this is the big time for big money.

    It's crap.

    If we want K-12 kids to meet some standards, how's about going back to minimum standards for journalists and opinion writers?  Murrow has to be twirling in his grave.


    I thought he said in the first article (5.00 / 1) (#12)
    by nycstray on Fri May 08, 2009 at 12:48:58 AM EST
    he did NOT read her opinions?

    Exactly. (none / 0) (#13)
    by oculus on Fri May 08, 2009 at 01:21:02 AM EST
    Exactly not. (none / 0) (#21)
    by RonK Seattle on Fri May 08, 2009 at 03:09:25 PM EST
    He said "I haven't read enough of Sotomayor's opinions to have a confident sense of them".

    In kangaroo court, of course, the distinction is inadmissible.


    You damn yourself (5.00 / 0) (#14)
    by Big Tent Democrat on Fri May 08, 2009 at 05:52:40 AM EST
    by your ignorance of the particulars.

    Proving yet again the old adage, think before you speak.


    I dont (none / 0) (#16)
    by Ga6thDem on Fri May 08, 2009 at 06:29:00 AM EST
    know if the "push back" has worked since a lot of time people only hear the first thing i.e. Rosen and then don't hear anymore.

    It feels weird being a GW law student... (none / 0) (#17)
    by mike in dc on Fri May 08, 2009 at 10:03:36 AM EST
    ...nowadays, what with the furor over Rosen's piece, with Turley appearing on MSNBC every other night to talk about torture, and with Prof. Fontana also publishing a piece in TNR about Harold Koh.  I've taken courses with all these guys over the past 3 semesters.  
    I guess DC is a small town after all...

    Turley seems (none / 0) (#19)
    by Capt Howdy on Fri May 08, 2009 at 10:20:25 AM EST
    like the smartest of the bunch.  is that just because he is more telegenic?

    Probably... (none / 0) (#20)
    by mike in dc on Fri May 08, 2009 at 02:01:06 PM EST
    ...they're all pretty sharp, actually.  I just think Rosen may have some unresolved issues to work out with respect to the SC...

    i hope, for your (none / 0) (#23)
    by cpinva on Fri May 08, 2009 at 06:56:50 PM EST
    sake, that mr. rosen requires a higher caliber of work from his students, than he does from himself.

    his first article is also an indictment of the editor, who never should have allowed it into print. it is a study in intellectual laziness.

    i'd never heard of mr. rosen, before i read that article. he has no credibility with me. no thinking person will ever take him seriously.


    Question......... (none / 0) (#18)
    by NYShooter on Fri May 08, 2009 at 10:10:58 AM EST
    But first, for the purpose of disclosure, I am sincere in my query; no "dog whistling," no hidden agenda. Second, I'm not an attorney, know virtually nothing about this nominee, but hope (assuming qualifications are in order) that she is nominated, and confirmed. I do believe in diversity for such an important position, and not just for P.C's sake.

    So my question is: What is the protocol for using anonymous sources in a piece like this? Of course, using only anonymous sources would be inappropriate. But I can envision situations where things are extremely sensitive (national security, for instance) where "on the record" statements would be impossible to come by. What would be the proper criteria for a writer, having been exposed to information of a nature that demands exposure, yet, due to that same sensitive nature, witnesses would not come forward if their identity were required?

    This is obviously not the case in Judge Sotomayor's situation, but the whole question, or dilemma, of "print/don't print" must be very difficult for any reporter doing investigatory work.  

    As a professional journalist (none / 0) (#24)
    by lazare stgare on Sat May 09, 2009 at 11:08:19 AM EST
    with 40 years' experience as a reporter/editor, here's my reply:
    A credible article or piece of commentary does not contain a string of anonymous sources, all of whom express various versions of the same point of view. Anonymous sources are credible when dealing with facts, not opinions. A piece of commentary is not credible when a position is taken by the writer followed by a series of anonymous comments backing up the writer's position. Balance is critical. It is extremely difficult to believe that Jeffrey Rosen used balance and good judgment in his screed against Sonia Sotomayor. The thought that he is a professor of law with a column in a national magazine of opinion is frightening, to say the least.