Earlier this month, George Washington University professor and New Republic legal analyst Jeffrey Rosen turned to anonymous sources in a blistering - and controversial - attack on Judge Sonia Sotomayor's judicial temperament. Now just days after the raging right predictably made Rosen's smears a centerpiece in the battle against Sotomayor, the mainstream media are following their lead.
As it turns out, 24 hours after McClatchy claimed, "Sotomayor's take-no-guff demeanor could alter court dynamics," Thursday's New York Times headline announced, "Sotomayor's sharp tongue raises issue of temperament."
That conservative mouthpieces like Michael Gerson, Karl Rove and the Washington Times would amplify Rosen's second-hand smear that Sotomayor is "not that smart and kind of a bully on the bench" is unsurprising. (For his part, Rove this week called Sotomayor "a schoolmarm" and a "lightweight.")
But two days after even Rosen acknowledged, "Of course, Judge Sotomayor should be confirmed to the Supreme Court," the New York Times built on his earlier critique. In a piece featuring a preponderance of positive assessments from her judicial colleagues and attorneys appearing before her court, the Times instead emphasized the negative:
But to detractors, Judge Sotomayor's sharp-tongued and occasionally combative manner -- some lawyers have described her as "difficult" and "nasty" -- raises questions about her judicial temperament and willingness to listen. Her demeanor on the bench is an issue that conservatives opposed to her nomination see as a potential vulnerability -- and one that Mr. Obama carefully considered before selecting her...
Other lawyers, though, are not so enamored. In the Almanac of the Federal Judiciary, which conducts anonymous interviews with lawyers to assess judges, she has gone from generally rave reviews to more tepid endorsements. Among the comments from lawyers was that she is a "terror on the bench" who "behaves in an out-of-control manner" and attacks lawyers "for making an argument she doesn't like."
"I felt she could be very judgmental in the sense that she doesn't let you finish your argument before she jumps in and starts asking questions," said Sheema Chaudhry, who appeared before Judge Sotomayor in an asylum case last year. "She's brilliant and she's qualified, but I just feel that she can be very, how do you say, temperamental."
Which apparently is the exact discussion TNR's Jeffrey Rosen would like to see. After all, in his 2007 PBS series and accompanying book, The Supreme Court: The Personalities and Rivalries That Defined America, Rosen declared judicial temperament as embodied by the great John Marshall the key to determining success or failure on the Court. Of course, early on Rosen praised incoming Chief Justice John Roberts as "resurrecting Marshall's vision." Ultimately, a disappointed Rosen expressed buyer's remorse over Roberts' utter disregard for precedent and unanimity, lamenting, "Will Roberts ever get better?"
Sadly, only Rosen's first opinions and initial judgments seem to make it into the mainstream media.
(Glenn Greenwald has more on Rosen, the New York Times and anonymous sources. This piece also appears at Perrspectives.)
