When federal appeals court Judge Sonia Sotomayor emerged as a leading candidate to be named to the U.S. Supreme Court this spring, one Web article above all drove debate about her merits.
The article was used to bash the judge's prospects even before her formal nomination. But its author, the noted legal writer Jeffrey Rosen, says he's been burned by the episode, too — enough that he's swearing off blogging for good.
"It was a short Web piece," Rosen says now, sounding a little shellshocked. "I basically thought of it as a blog entry."
"Short" for Rosen, the legal affairs editor for the left-of-center New Republic magazine, was more than 1,000 words. "The Case Against Sotomayor" was posted on the Web site of The New Republic on May 4. He quoted unnamed former federal law clerks who had worked for Sotomayor and her colleagues. Some seemed quite high on her skills and her possible nomination. But he also cited the concerns of others about the intellectual rigor of her legal writing and her demeanor as a judge.
"I've always been interested in temperament because it strikes me as the most reliable predictor for judicial success," Rosen says. "It turns out that over the course of history, the most successful justices have been the more pragmatic, conciliatory people who have put the interests of the court above their ideological agendas."
Rosen would seem perfectly poised to make such an assessment. He's a law professor at George Washington University who also frequently writes for The New Yorker and the New York Times Sunday magazine, as he did again this weekend.
A Provocative Charge
Among the things Rosen reported was the central claim that Sotomayor was, in the actual words of one of his sources, "not that smart and kind of a bully on the bench."
It was a provocative turn of phrase about Sotomayor, a woman who was a summa cum laude graduate of Princeton University and an editor of the Yale Law Journal. Rosen's piece ricocheted around the blogosphere, picked up by the judge's ideological friends and foes.
Mark Hemingway of the conservative National Review tartly wrote, "So she's dumb AND obnoxious. Got it." The next day, Marc Ambinder, political editor for The Atlantic, wrote an online essay with the headline "Sotomayor's Public Image at Risk, Early." He pointed to Rosen to represent what he called "the respectable political center."
"My goal was not necessarily to spur any defense of her," Ambinder says. "It was to point out that in the absence of a defense of her, those questions were likely to be part of how she came to be defined, if and when Barack Obama actually announced her as the nominee."
And Ambinder's piece, itself widely circulated, helped cement Rosen's account as conventional wisdom. It was explicitly cited by reporters and anchors on such outlets as Fox News, CNN and NPR.
But the story really inspired the conservative commentariat. Rush Limbaugh read aloud from Rosen's piece, saying Sotomayor "sometimes missed the forest for the trees"; CNBC's Larry Kudlow cited Rosen to say, "she's not penetrating, not well-prepared"; and Fox News' Fred Barnes invoked Rosen in calling her "basically just an average appeals court judge."
Liberals struck back — at Rosen. Some asked whether a male judge would be confronted with the same assessments of brusqueness from the bench. Others asked how a judge of her academic and legal achievements could be considered an intellectual lightweight. And there was great focus on Rosen's use of anonymous former federal law clerks.
"Clearly the point and purpose of Rosen's article was to convey what he claimed was the fact that most people who had worked with Sotomayor in the 2nd Circuit found her to be wanting — both in terms of her intellect and her character," says Glenn Greenwald, a former lawyer who says he tried several cases before Sotomayor and writes on constitutional matters for the liberal online publication Salon.com.
He wrote repeatedly about Rosen's take on Sotomayor, even as Rosen posted additional essays, first to explain his thinking further and then to support her confirmation once Obama announced the pick.
Greenwald says it would have been legitimate to explore the judge's rulings and even her temperament, but he called the way Rosen assessed her as "reckless and just journalistically corrupt."
"Essentially, what he did was the equivalent of finding a few people who disliked somebody, giving them anonymity so they can say whatever they want, without any accountability whatsoever, and then passing along pure, vindictive gossip," Greenwald says.
Rosen Defends Article
In his initial follow-up posting, on May 8, Rosen added two elements: First, he wrote that his initial sources were liberal scholars who approached him who had been clerks for Sotomayor or other judges on her appeals court. They wanted a more impressive liberal figure for the court. Second, their impressions that she was not a star of the highest order were underscored by an entry on her in the respected Almanac of the Federal Judiciary, which includes ratings of judges based on lawyers who work with them. (Some of the quotes in the Almanac also praised her intelligence and demeanor.)
By writing about her legal intellect, Rosen tells NPR, he was exploring whether she rose to the level of judicial and tactical brilliance one might want in a Supreme Court Justice. Rosen says he wasn't questioning her fundamental intelligence or skill as a lawyer.
"I was appalled by the misrepresentation of my article by conservatives along those lines," Rosen says. "The article said nothing of the kind. It quoted positive things about her. It quoted concerns about her temperament. It's a willful misrepresentation of the piece to caricature it in that way."
In addition, Rosen has disavowed the headline, which he says he didn't see before the article's posting and unfairly framed his piece as an attack. Maybe, Rosen says, he could have been a bit more careful about the nuances.
But Rosen fundamentally defends his original article. He thought it was right to get a first take on the judge before the nomination was a done deal. He says his initial sources made clear they never would have talked on the record. He points to a recent New York Times article titled "Sotomayor's Blunt Style Raises Issue of Temperament" that cited similar passages from the Almanac.
Above all, Rosen says he's drawn a lesson from how his initial essay was treated by people of both ideological stripes. He won't be blogging any more. He wants to spend more time with the material before hitting "send."