TNR: Sotomayor not brilliant, but certainly egotistical

After the news of David Souter’s retirement, most of the speculation regarding his replacement centered on Sonia Sotomayor, currently on the US 2nd Circuit Court of Appeals.  Sotomayor’s name had come up during the Bush administration as well during the summer when two Supreme Court openings appeared.  The Right didn’t have any enthusiasm for the George H. W. Bush appointment, but many assumed she would get embraced by the Left.  Not so fast, says Jeffrey Rosen at TNR:

But despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

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.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.”

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions–fixing typos and the like–rather than focusing on the core analytical issues.

Not that smart and a bully.  Sounds wonderful!  At least Souter was a polite non-entity.

The biggest part of the problem for the Left will be what we on the Right feared with the Harriet Miers nomination.  Supreme Court nominations are rare opportunities to seed the legal system with well-reasoned precedents on behalf of one’s legal philosophy.  Nominating a lightweight surrenders that opportunity.  Republicans and conservatives held out for a better choice than Miers and got Samuel Alito, who had much more intellectual heft in his resumé.

Considering Obama’s other appointments, though, this could be seen as a feature and not a bug.  He hasn’t exactly made dazzling choices, from Tim Geithner to Tom Daschle to Bill Richardson to … well, Joe Biden is really the acid test here, since that choice reflects Obama’s judgment on who best represents his values and policies in case of a sudden emergency.  If Sotomayor is the mediocrity that Rosen suggests, then remember that I predicted exactly that kind of appointment from the beginning, and bet accordingly.