Submitted By Todd on May 26th at 11:42am
Hispanic or gay.
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.... 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 lesbians were likely thrown off the list because it would have been inappropriate to have gay justices making gay marriage the federally mandated, court ordered, law of the land.
"Latinos are running out of patience" said Ruben Navarrette, a syndicated columnist and CNN.com contributor. " For 20 years I've been hearing the drumbeat from Latinos … waiting for a Latino on the Supreme Court."While Sotomayor was the Hispanic frontrunner, an investigation by The New Republic revealed those who knew her from the appeals court weren't impressed.
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."This is the benefit of choosing Supremes through genetic testing rather than competence.
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.President Bush got raked over the coals for choosing his legal counsel for the court. President Obama has chosen someone who would never have been selected were it not for her gender and ethnicity. Will he now face similar attacks for placing politics over quality?
Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)Who needs a litmus test when there's DNA testing?