LIANE HANSEN, host:
This is WEEKEND EDITION from NPR News. I'm Liane Hansen.
Sonia Sotomayor is now President Obama's nominee to the U.S. Supreme Court. Earlier this month, when the federal appeals court judge emerged as a leading candidate for the position, a controversial article about her appeared, and it is still driving the debate over her merits.
NPR's David Folkenflik offers this case study of how the echo chamber of Washington really works.
DAVID FOLKENFLIK: Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of the left-of-center New Republic magazine. He also writes for The New Yorker and the New York Times Sunday magazine section. All-in-all, a well-credentialed guy to write about the Supreme Court. Early this month, Rosen says, his editors asked him to assess Judge Sotomayor's credentials.
Professor JEFFREY ROSEN (Law, George Washington University; Legal Affairs Editor, New Republic): It was a short Web piece. I basically thought of it as a blog entry.
FOLKENFLIK: Short for him means 1,000 words. It was posted online on May 4th and was titled "The Case Against Sotomayor." Rosen quoted unnamed former federal law clerks, some of whom seemed quite buoyant about her. But he also cited the concerns of others about the intellectual rigor of her legal writing and her demeanor.
Prof. ROSEN: I've always been interested in temperament 'cause it strikes me as the most reliable predictor for judicial success. 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.
FOLKENFLIK: Among the things Rosen wrote, and yes, I am cherry-picking a bit here, was the central claim that she was - in the actual words of one of his sources - quote, "not that smart and kind of a bully on the bench." This about a woman who was a summa cum laude graduate of Princeton and an editor of the Yale Law review. The piece ricocheted around the blogosphere.
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 Monthly, wrote an online essay with the headline "Sotomayor's Public Image at Risk, Early."
Mr. MARC AMBINDER (Political Editor, The Atlantic Monthly): My goal was not necessarily to spur any defense of her, but 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.
FOLKENFLIK: And that piece helped cement Rosen's account as conventional wisdom. It was explicitly cited by news outlets, including Fox News, CNBC, CNN and NPR. But it really inspired the conservative commentariat.
Mr. LARRY KUDLOW (Talk Show Host, CNBC): In the liberal New Republic - I'm sure you saw it - Jeffrey Rosen criticizes her.
Mr. RUSH LIMBAUGH (Syndicated Talk Show Host): Let me read what he writes about it - sometimes missed the forest for the trees.
Mr. KUDLOW: That she's not penetrating, she's not well prepared...
Mr. FRED BARNES (Talk Show Host, Fox News): Basically just an average appeals court judge.
Mr. LIMBAUGH: She's not the brains that they're portraying her to be. She is an affirmative action case extraordinaire.
FOLKENFLIK: Almost hard to figure out there where Rosen's article ends and the politicking begins. In this case, by Larry Kudlow, Rush Limbaugh and Fred Barnes.
Prof. ROSEN: I was appalled by the misrepresentation of my article by conservatives along those lines.
FOLKENFLIK: Rosen now supports Sotomayor's confirmation, but he says he was exploring whether she rose to the level of judicial brilliance one might want in a Supreme Court justice - not questioning her fundamental intelligence or skill as a lawyer.
Prof. ROSEN: The article said nothing of the kind. It quoted positive things about her, it quoted concerns about her temperament and it's a willful misrepresentation of the piece to caricature it in that way.
FOLKENFLIK: He hated the headline and maybe, Rosen says, he could've been a bit more careful about the nuances. But some liberals read his piece and questioned whether a male judge would be criticized on the same grounds.
Glenn Greenwald is a former lawyer who's tried cases before Judge Sotomayor and he writes for Salon.com.
Mr. GLENN GREENWALD (Former Lawyer, Salon.com): 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 second circuit found her to be wanting -both in terms of her intellect and her character.
FOLKENFLIK: Greenwald argues Rosen's decision to grant anonymity to his sources was...
Mr. GREENWALD: Reckless and just journalistically corrupt. I mean, essentially what he did was the equivalent of finding a few people who disliked somebody, giving them anonymity so that they can say whatever they want without any accountability whatsoever, and then passing along pure, vindictive gossip.
FOLKENFLIK: But Rosen says his initial sources never would've talked on the record. They were liberal law professors who used to be law clerks for Sotomayor and her peers and wanted a justice who might be a more effective liberal voice on the court. 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 anymore - he wants to spend more time with the material before hitting send.
David Folkenflik, NPR News.
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