On Sotomayor

A set of anonymous personal attacks, and a spirited panegyric. Reading one of the judge’s dissents suggests to me that the panegyrist has the better of the argument.

Jeffrey Rosen published in The New Republic a scathing attack on the intellectual and personal qualities of Judge Sonia Sotomayor, believed to be a leading candidate for the Supreme Court. Speaking from behind the veil of anonymity, a bunch of former clerks to other judges paint her as “not that bright” and rather mean and overbearing.

Of course, anonymous accusations, especially personal ones, are obnoxious. But equally of course lawyers have good reason to worry about going public with criticism of someone who might be on the Supreme Court. For someone who doesn’t follow legal matters especially closely, it’s very hard to judge the accuracy of the attacks, though confidence in them is not boosted when the author of the piece admits he hasn’t talked to enough people or read enough of the judge’s opinions to form his own judgment, and when at least one assertion in the piece &#8212 concerning something purportedly written by another judge about one of Sotomayor’s opinions &#8212 turns out to be false.

The additional information that the “not that bright” Sotomayor, coming from a background in the projects, won the Pyne Prize for the top undergraduate in her year at Princeton, ought also to raise some questions about the accuracy of Rosen’s reporting. The best undergraduate isn’t necessarily the smartest person, let alone the wisest, but it’s hard to believe that the best undergraduate in a Princeton class lacks anything in the way of sheer brainpower. Still, one might be left with lingering doubts, as the anonymous tattlers no doubt intended. I was: given the pressure on Obama to nominate a Latina, it’s not utterly unreasonable to suspect that a Latina nominee might have been picked despite, rather than because of, her other qualities.

All that makes the spirited praise of Sotomayor by one of her former clerks, Robin Kar, that much more interesting. A former clerk’s praise of his judge cannot, of course, be taken entirely at face value; being seen as strongly supportive is very much in his professional interest, and having his mentor as one of the Nine not less so. Moreover, any clerk working for a not-obnoxious judge should reasonably feel considerable gratitude toward the person who gave his early career such a boost.

All that said, I find Kar’s piece utterly convincing. Not every judge attracts this sort of passion from her clerks. And Kar does more than gush: he makes a strongly-argued case that Sotomayor has exactly the sort of intelligence you’d like to see on the Supreme Bench. Better yet, in response to a question, he identifies two pieces of Sotomayor’s legal writing as exemplifying her talents of analysis and legal writing her dissents (thus reflecting her views alone, not aided or burdened by those of her colleagues) in Croll v. Croll andHankins v. Lyght.

I read the Croll case first. As a non-lawyer, my capacity to judge the quality of the legal analysis is limited; I have no idea whether the judge is right or wrong about the cases she cites. But as a connoisseur of argumentative reasoning and prose, I’d give it very high marks; having read first the controlling opinion and then the dissent, I found the dissent compelling.

The case involves a custody dispute involving two U.S. citizens living in Hong Kong. A Hong Kong court awarded custody of the child to the mother, reserving to the father rights of access and providing that the child could not be taken from Hong Kong without either the consent of the father or a court order. When the mother took the child to New York and decided to settle down, the father sued, using a treaty that allows the courts of one country to enforce custodial decisions made in another country; the goal of the treaty was to eliminate the option of shopping for a new forum by moving the child to a new jurisdiction.

The legal question was whether the father’s right to forbid the child’s relocation was the sort of custody right protected by the treaty. The majority ruled that the father had no “custody,” and therefore no standing to sue, leading to the very unsatisfactory result of denying any legal remedy for a transparently unlawful act, since an order by a Hong Kong court for the child’s return would be, under the majority’s theory, unenforceable as long as the child remained in the United States.

Now of course that’s the whole problem with the jurisprudence of jurisdiction; clearly there are wrongs, even legal wrongs, that particular courts have no authority to undo. Still, I hope it’s not too “empathetic” of me to feel that the less unjust result is to be preferred, other things equal, and Sotomayor’s dissent makes a strong argument that the majority’s narrow reading of the treaty undermines the treaty’s purpose.

Hankyns v. Light involves a bit of law I know something about: the Religious Freedom Restoration Act, as applied in this case to the question whether the federal age-discrimination law bars Methodist Church from forcing a minister to retire at age 70. My initial sympathies lay with the minister, given that the church didn’t even claim any doctrinal basis for its rule. Sotomayor’s dissent turned me around. Having first argued that RFRA doesn’t apply, Sotomayor then falls back on earlier First Amendment jurisprudence to argue that having government agencies regulate the choice of clergy simply entangles the state too closely with church management, in violation of the Free Exercise clause. My first-blush analysis was to liken a forced retirement to a job-site injury, something that involved secular questions only. But Sotomayor’s argument made it clear to me that clergy hiring (as distinguished from the hiring of a math teacher in a religious school involved in one of the precedent cases) was inextricably a religious matter.

Again, I don’t know those cases, but having read the dissent I think I understand how that body of law works.

So, insofar as a non-expert can judge, Kar’s two examples are both on point: Sotomayor writes much more clearly and persuasively than the average appellate judge.

Thus the overall effect of the dispute on my thinking has been to take me from a position of never having heard of Sotomayor to a position where I would be delighted to hear that the President had nominated her. If my response is at all typical, Rosen and his anonymi may yet turn out to have done their intended victim a favor.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com