The Cynical Attack on Sonia Sotomayor

Sonia Sotomayor is a friend of mine and has been for over a decade. Just three weeks ago, she introduced me as a speaker at a meeting of New York legal groups. She is even closer to my wife, who works for the Attorney General of New York State. So I have followed Sotomayor's career with more than usual interest. And I have been aware, for years, of the buzz around her, of the widespread assumption that, if a Democrat became president and a Supreme Court seat opened up, Sotomayor would be a likely candidate. A summa cum laude graduate of Princeton, an editor of the Yale Law Journal and a U.S. court of appeals judge, Sotomayor has credentials that shout "possible Supreme Court justice."

So once David Souter announced his intention to step down from the court, I was not surprised to learn that Sotomayor's name was in play. Nor was I surprised to find that some people opposed her nomination. What I found stunning was the intensity of that battle before the battle. Long before it was clear whom Barack Obama would name, the knives were out—and they were aimed not just at Sotomayor but at anyone thought to be under consideration.

A group calling itself the Judicial Confirmation Network took out ads to "expose the records" of Obama's presumed frontrunners. The outfit accused Solicitor General Elena Kagan of kicking the military off campus, "incredibly—during a time of war," when she was dean of Harvard's Law School. It faulted Appeals Court Judge Diane Wood for denying religious freedom "to students who want to gather together and pray or study the Bible on their law school campus." And it accused Sotomayor of believing that "the content of your character is not as important as the color of your skin." [Of course, hearing such stuff from ideologically driven conservative political operators is hardly news—such groups were going to have problems with whomever Obama was considering. Far more surprising were the attacks from some on the left.]

The most interesting came from The New Republic's Jeffrey Rosen. In a piece titled "The Case Against Sotomayor" (Rosen later said he regretted the headline), Rosen characterized Sotomayor as a "bully" and questioned her intellect. A number of former law clerks and others, he wrote, had "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."

Why Rosen discounted the views of her own law clerks (who presumably knew her best and who generally revere her) in favor of malicious gossip from anonymous clerks was never clearly explained. But Sotomayor's enemies happily took the gift, even as her friends rushed out to assure anyone who would listen that intellectual lightweights generally didn't graduate summa from Princeton or become editors of the Yale Law Journal. The attack on her brainpower, more than any other, drove Sotomayor's defenders crazy; it sent the blogosphere into overdrive, even hatching fevered speculation on whether Rosen was somehow part of a conspiracy to award the nomination to someone else. As the back and forth on Sotomayor's intellect continued, new lines of attack were introduced. She was accused of being a judicial activist and an ideologue who would make law from the bench.

I should make clear that the caricatured figure who emerges from those attacks bears no resemblance to the warm, engaging and always thoughtful woman I have come to know over the years. It would be strange if she did. For even many of her attackers admit they are playing a rather cynical game—one that is less about raising legitimate questions of a nominee than about lifting the fortunes of a political party in trouble.

As Charlie Savage recently reported in The New York Times, "While conservatives say they know they have little chance of defeating Mr. Obama's choice because Democrats control the Senate, they say they hope to mount a fight that could help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats." In other words, Sotomayor is almost incidental to the attacks that have come her way. Anyone who could help "refill depleted coffers" would do just as well.

Surely, Obama believes that the attacks will amount to little. He understands the process for what it is. Indeed, her attackers may even have done Sotomayor something of a favor. By getting the ugly—even spurious—stuff out early, they have gone a long way in establishing just how hard it will be to make any of this dirt stick.