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02 June 2009

So-somayor

Is Sonia Sotomayor "brilliant"? Is she exceptionally intelligent? I have my doubts.

The New Republic's Jeffrey Rosen broached the topic in early May in an obvious attempt to encourage Obama to seek a more impressive liberal jurist, but to no avail. Rosen, of course, has been pilloried for his reporting (he had the nerve to use "anonymous sources"!). This paragraph from Rosen's article seems to sum up the issue well:
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."

The WSJ printed an excerpt from the oral arguments from the Ricci reverse-discrimination case where Sotomayor aggressively questions the lawyer for Ricci (via Steve Sailer):
JUDGE SOTOMAYOR: Counsel ... we're not suggesting that unqualified people be hired. The city's not suggesting that. All right? But there is a difference between where you score on the test and how many openings you have. And to the extent that there's an adverse impact on one group over the other, so that the first seven who are going to be hired only because of the vagrancies [sic] of the vacancies at that moment, not because you're unqualified--the pass rate is the pass rate--all right? But if your test is always going to put a certain group at the bottom of the pass rate so they're never ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn't the city have an opportunity to try and look and see if it can develop that?
Ok, so it's off the cuff so we're not exactly expecting the Gettysburg Address. But that "vagrancies" - that's a bit of a red flag, no?

Some hint at her limitations can be gleaned from reading between the lines of a fawning NY Times analysis of Sotomayor's written opinions by Adam Liptak. He notes that her opinions "reveal no larger vision, seldom appeal to history and consistently avoid quotable language." As Steve Sailer has noted, Obama himself is a master at "avoiding quotable language," the better to confound those who would use such quotes against him, and this worked out well as little of the race-obsessed worlview he propounded in Dreams ever made the news. Would a judge though wish to avoid quotable language in her opinions? Isn't that the currency of fame and respect in the legal profession - to have one's opinions be referenced and quoted? Could she be so clever that she would avoid quotable language as a strategy to avoid confirmation controversies should she be nominated to the big show?

Liptak goes on: "Judge Sotomayor’s decisions are, instead, almost always technical, incremental and exhaustive, considering all of the relevant precedents and supporting even completely uncontroversial propositions with elaborate footnotes." Another way to phrase it would be that her opinions are an uninspired, haphazard mash of precedent and citation, however remotely relevant, that fail to form a coherent legal theory to support her decision. And the part about "supporting even completely uncontroversial propositions with elaborate footnotes" suggests that she is heavily reliant on her clerks' drafts - and the lack of a "larger vision" suggests she does little more than compile her staff's labors rather than synthesing their research into a more comprehensive opinion.

Now I have no doubt that she is "smart" in any conventionally understood definition of the term. She was valedictorian of her high school class - granted, a parochial school in the Bronx. She also graduated Summa cum Laude from Princeton - again, granted, as a history major in a school also graduating physics majors. (I can find no evidence she graduated "second in her class" as many - including Obama's press secretary - have claimed.) So I do accept that she is "smart," but given that both these achievements can easily result from a combination of smart and conscientiousness, I'm seeing no evidence of "brilliant" or "highly intelligent."

What about the Pyne Prize she received at Princeton, which has been touted as evidence of her superior intellect?. Here's the article from the Princetonian announcing the winners of the Pyne Prize in 1976, which she shared with another student that year.

Regarding her co-winner, David Germany*, the Princetonian dwells on his academic excellence. "The Pyne Prize is not the first recognition of Germany's scholarship-he has won both the Freshman First Year Honor Prize for the highest grades during freshman year and the Class of 1939 Princeton Scholar Prize for the highest academic standing prior to senior year...Today, his transcript shows 21 A+s and 9 A's...An economics major, Germany has been employed as a teaching assistant in upper-level economics courses."

But regarding Sotomayer, the article only obliquely discusses her academics. "Sotomayor, a history major, has maintained almost straight A's for the last two years, but is especially known for her extracurricular activities." Any remaining notions that the Pyne Prize is solely (or even predominantly) awarded on academic excellence should be disabused by Princeton's president's own description of the prize:
President Bown said the selection process is a detailed one, involving interviews with department chairmen, faculty and students who have had contact with nominees. 'We try our best to find people who excel,' he said. There are no set criteria for the prize, Bown added, saying, 'There are many ways to contribute-sometimes not through any organized method.'

Again - I'm not saying she's not smart, but Rosen's article appears to me well justified. She will look foolish attempting to go toe-to-toe with Scalia (or Roberts and Alito, for that matter - see this comparison of Sotomayor's vs. Alito's "lawyers' evaluations") and may well embarrass liberals with her off-target questioning. Her strident manner seems unlikely to endear her to Justice Kennedy - I'd say the opposite is more likely. Conservatives should be relieved that a more imposing candidate was not nominated - and if that question quoted above is any indication, we just might be treated to some amusing little malaprops from the bench to keep us entertained over the next couple decades.

* Mr. Germany apparently parlayed his academic success into a lucrative career as a big-time money manager.

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4 Comments:

Blogger KingM said...

She's bright, no question. Of course, I would expect a Supreme Court justice to be brilliant, but that has probably been too much to insist on in any political age, let alone the budding Idiocracy of the early 21st Century.

At least she's not Harriet Meyers, and either side can make its argument with a straight face.

June 03, 2009 6:50 AM  
Blogger ziel said...

But I'm pretty sure she's less bright than the other justices. Clarence Thomas's intellect is often questioned, but it seems highly doubtful she could match his pithiness in his dissent in Johnson v. California. As related by the Times, Justice Thomas, who dissented two years ago in the Michigan case, noted with some asperity on Wednesday that the court had deferred then to the law school's judgment on its need for affirmative action.

"Deference would seem all the more warranted in the prison context," he said, "for whatever the court knows of administering educational institutions, it knows much less about administering penal ones."


Little gems like this is why you want a "quotable" justice on your side on the court.

http://www.nytimes.com/2005/02/24/politics/24scotus.html

June 03, 2009 8:07 AM  
Anonymous Jim Jones said...

A good post, ziel. I was a little puzzled by the "second in her class" claim in light of reports that she almost flunked out her freshman year. It's almost impossible to have a bad semester at a good school and graduate second in the class.

June 07, 2009 9:21 PM  
Anonymous Anonymous said...

Not that it makes a difference, but let's get the facts straight. She made the valedictory address, but she did not rank first in the 1972 graduating class from Cardinal Spellman High School.

June 11, 2009 5:44 PM  

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