Because the Supreme Court is short on women and devoid of Hispanics, Sotomayor, an appeals-court judge who was appointed by President Clinton, was considered a front-runner as soon as Justice David Souter announced his retirement late last month. A few days later, the New Republic, a respected American weekly that covers politics from a centre-left perspective, published “The Case Against Sotomayor,” written by longtime legal commentator Jeffrey Rosen. The article became one of the magazine’s most controversial pieces in years: not because it argued against Obama’s potential nominee, but because it chose to do so almost entirely without facts, based instead on gossip, hearsay and anonymous sources.
Rosen admitted near the end of the piece that he didn’t really know what kind of a judge Sotomayor was, and he hadn’t really bothered to check: “I haven’t read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths.” Instead of taking the time to read more of her opinions, he spent most of the article quoting people who had formed negative impressions of her for one reason or another. A clerk “for another judge” told Rosen that Sotomayor “was not that smart and kind of a bully on the bench,” and that an elderly male judge once told her to “stop talking and let them talk.” And Rosen summarized what he thought to be the consensus on Sotomayor when he wrote that his sources questioned “her ability to provide an intellectual counterweight to the conservative justices.”
Other pundits gleefully seized on Rosen’s article as proof that Sotomayor would be an affirmative action pick, appointed because of her ethnicity and inspiring life story (a poor woman from the Bronx who worked her way through law school) rather than her merits. Mark Hemingway at the conservative National Review summed up Rosen’s argument this way: “So she’s dumb and obnoxious. Got it.” Cable news pundits picked up on the New Republic piece, and Matt Drudge repeatedly linked to it on his popular Drudge Report. David Letterman made jokes about Sotomayor being an angry, shrill bully, and when late-night TV hosts makes a joke, you know it’s conventional wisdom. Within a week, it was accepted among many pundits that Sotomayor would probably be a bad choice or that, in the words of Bush legal czar John Yoo, she is “distinguished only by her race”–all because of one New Republic article.
Magazines like the New Republic have always shaped conventional wisdom, even with articles as confused as Rosen’s. The difference today is that there’s more push back, both from the left and the right. In this case, liberal commentators and bloggers attacked Rosen, accusing him of sloppiness, a willingness to pass on any negative anonymous comment without questioning it, and his parroting of the worst stereotypes about professional women and minorities. Dahlia Lithwick, legal commentator for Slate, pointed out that Rosen has, throughout his career, assumed that “a diverse bench must inevitably be a second-rate bench.” The New Republic website was flooded with comments critical of Rosen, leading him to write a half-hearted, self-righteous response. The battle lines were clear: on one side, conventional wisdom as represented by TNR, cable news and Drudge; on the other side, the outsiders–bloggers, twitterers, online journalists.
What’s unusual is for a politician to pay so little attention to conventional wisdom among the punditry. By picking Sotomayor, Obama may be siding against the pundits and with his “base”: people who no longer take these so-called experts seriously. Or maybe he’s just throwing his base a bone after disappointing them on so many other issues, like indefinite detention.