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Tuesday, May 05, 2009

Critical Reporting

posted by Silvana
Via Matthew Yglesias, I am incensed by this Jeffrey Rosen piece in The New Republic about Sonia Sotomayor. Rosen's point is as follows: he talked to some people, none of whom he names as sources, and he doesn't know much and didn't talk to enough people, he admits, but yet he feels qualified to opine that Sonia Sotomayor Is Kinda Dumb.

I don't know who this article is directed at, but as a lawyer who knows at least a little bit about judges, this rankled me so hard:
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." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?")
This is a perfect example of why we need more women and especially feminists in the media. If someone said this to me, I would not uncritically report it in a national magazine as if this were an unproblematic assertion.

Seriously? A bully on the bench? If you've been to almost any oral argument anywhere ever, you know that this is nearly impossible under the standards that most judgess set by their behavior. The point of oral argument is for judges to ask you questions, not for you to stand and make a speech. Furthermore, the assertion that she's not that smart and is a "bully on the bench" hoists a giant sexism flag, to me. Take, for example, one of the judges I've seen in action multiple times: Richard Posner. He's on the Seventh Circuit Court of Appeals. Richard Posner is a complete asshole on the bench. He interrupts, he opines, he's dismissive. But do people write articles in the New Republic saying he's not qualified to be a Supreme Court Justice because he's a "bully on the bench"? No, he's hailed as a genius. In fact, he's probably the most famous federal judge there is. And as to "don't get to the heart of the issue," well, judges of all kinds are notorious for getting hung up on tangential questions. That's why they have the phrase "finer points of law."

I'm not trying to say Posner isn't smart. He is. My point is that even if they are right that Sotomayor asks a ton of questions from the bench, that makes her no different from hundreds of male judges who do exactly the same. If anything, it makes her different from the rest of the female judges who are less aggressive (though Ginsburg is no shrinking violet).

And her colleague who leaned over and told her to shut up? That's evidence of nothing except that her colleague is an uncollegial asshole. You just don't do that to a fellow judge. Assuming the anecdote is true, and the fact that the colleague is described as an "elderly" judge, I smell sexism all over it. But does Rosen consider that? That Sotomayor might have been unfairly regarded by the other judges and those judges' clerks (who were undoubtedly influenced by the judges they worked for), who were prejudiced against Sotomayor because how could a woman—a Puerto Rican, for god's sake!—think she could have as much right to speak and to question and to dominate as they do? But let's move on, shall we? Rosen continues:
This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)
Let me get this straight. One liberal judge criticized the opinion written by a panel that contained another liberal judge. We don't know whether she wrote the opinion. And judges criticize opinions written by other judges all the time. As it turns out, that's what appellate courts are for. But yet, this is evidence that Sotomayor is a big dummy!

Also, the "no reference whatsoever" comment was in a dissent. This would hardly be the first time that a dissenting justice criticized an opinion that they were, you know, dissenting from.

To assert that she doesn't have the "intellectual firepower" to be a Supreme Court Justice, especially with no evidence other than some questionable assertions like "she talks too much" and "other justices have criticized opinions that she may or may not have written" smacks of sexism and racism. Because it just so happens that you never hear these assertions about a white man being considered for the bench. You hear that his philosophy is too liberal, too conservative, too activist, too constructionist, too this or that. You hear that he's an unknown quantity, which could be good or bad depending on context. You hear that he may not have enough experience. But you never, ever hear that hey, he just doesn't have the innate intellectual ability.

But I don't think Jeffrey Rosen ever even considered that his so-called sources' opinions of Sotomayor might be colored by their own sexism and racism, or by the sexism and racism of the judges they worked for, who their perceptions were being filtered through. I'm just a lowly blogger, but isn't evaluating the credibility of your sources one of the primary things you're supposed to do, as a journalist?

I have one final point. What earthly reason is there to quote anonymous sources here? Sources don't get to be anonymous just because they want to baselessly trash someone else's reputation and not have to answer for it. They don't get to be anonymous just because they want to. This article contains an example of a situation where unnamed sources are necessary:
"Sometimes the only way to get a story is to promise confidentiality," says Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press advocacy group. Ms. Dalglish, a former reporter in Minnesota, remembers relying on anonymous sources to expose the illegal dumping of toxic waste in a pond. "Those folks were never going to come forth and admit to doing what they did if I identified them," she says. "They were afraid they'd be arrested, intimidated or sued. The important thing is that the place got cleaned up."
See any parallel between that situation and Rosen's article? I didn't think so.


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