Justice David Souter's Replacement

Last week, David Souter retired from the United States Supreme Court. David Souter was appointed by President George H. W. Bush but whose legacy is most noticeable for his continued "leftward" drift into the reliably liberal bloc of the Supreme Court.

Supreme Court nominations, and to a lesser extent other federal judge appointments, are every president's chance to shape or influence the disposition of the high bench. The confirmation processes of Supreme Court nominees have gotten visibly more partisan and pugnacious since the very controversial appointment of Robert Bork by President Ronald Reagan. However, with the Democrats very close to 60 Senators--thus able to vote for cloture and end a filibuster-- in the Senate, Obama will likely get his choice of who he wants. So, at this point, I will avoid a discussion of a confirmation fight until there actually is one...and if there is one at all.

As of this past weekend, there is NO official short-list of who Obama will nominate. However, several names have been considered, and the presumptive early favorite is Sonia Sotomayor of the 2nd circuit (New York). She is a woman. She is would be the first Hispanic. She is of the correct judicial philosophy of Obama (though not mine). And she is being championed by Senators Chuck Schumer and Kirsten Gillenbrand of New York, and also by others in the Senate.

Already the commentariat and the blogosphere are abuzz...pitching in their two cents on Sotomayor. But I was really struck by this analysis from George Washington University law professor Jeffrey Rosen. He wrote "The Case Against Sotomayor" in The New Republic, which is not exactly inhabited by denizens of conservative thought. His opinion of Sotomayor is damning:

"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 issue."

I wont get into the differences in jurisprudence--listen, Presidents get their choice and they generally pick their people....deal with it. But Supreme Court nominees, liberal or conservative, should have immense and profound intellects. If Professor Rosen is correct, then Sotomayor could be a disappointment.