Rosen Was Right

After two days of Sotomayor testimony I thought of Jeffrey Rosen’s piece on Sotomayor back in May (before he had to backpedal and support her so as not to embarrass the “team”). I don’t think much of his temperament criticism, but his analysis of her legal and intellectual capabilities seems exactly on the money:

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. ”

Has she said anything to dispel these concerns? Whether examining her verbal skills, her command of the law or her intellectual acuity, I come away thinking she is one of the least impressive Supreme Court nominees to come along in recent memory. Judge Robert Bork was obviously not everyone’s ideal judge, but the man’s intellectual prowess was undeniable and he refused to lie about his views. Justice Ruth Bader Ginsburg was frankly charming and sharp-witted in her testimony and could march the senators through the evolution of a number of strains of jurisprudence.

Whether you agreed with their philosophy or not, you had the sense with the Clinton, Reagan, and  George W. Bush nominees (yes, I leave Souter off the list) that there was good reason to put them on the Court. You listened for a day or even and hour and said, “Yes, that’s a Supreme Court Justice.” It was hard to dispute, even if you disagreed with one or another on his or her judicial methodology, that the nominee was bringing some intellectual heft.

Does anyone really have that sense from Sotomayor? And all of this is made worse, much worse, by her ham-handed efforts to distance herself from her own speeches and deny her own involvement with PRLDEF.

Rosen was trying to warn his liberal compatriots that they could do “better” than Sotomayor. He was right and should get some credit for his effort. Imagine if Diane Wood or Kathleen Sullivan, both liberal in philosophy but undeniably impressive, had been up there over the last couple of days. I suspect that conservatives would have been staring at their shoes, struggling for reasons to say “no” and grudgingly acknowledging that the nominee was going to add something to the Court beyond her gender.

The question is not whether Sotomayor will get through, but why the president felt so compelled to select her. If he was desperate to find a Latina, he should have found a wise one.