Jeffrey Rosen was originally responsible for giving this narrative heels in a discredited article that he has twice disclaimed. Nevertheless, Shapiro and Milbank have kept the fans going, and Shapiro even cites to Rosen's original analysis.
Shapiro and Milbank Say Much, Prove Little
Shapiro and Milbank fail for the same reasons that plagued Rosen's analysis. Neither has isolated anything in her writings that discredit her as a judge or intellectual. Shapiro says that Sotomayor has not issued any "important" decisions, but he never defines what this means. Even if one could define the term in this context, this would hardly disqualify her from the bench. While the Supreme Court has the luxury to take the "sexiest" and most compelling cases (because it has discretionary review for the most part), lower federal courts do not. They take cases as they come to them.
Also, during Sotomayor's tenure, the Second Circuit has not been the hotbed of judicial activity as the more ideologically partisan circuits, like the Ninth, Fourth and Fifth Circuits. It is more mainstream and tightly wrapped ideologically. Today's Second Circuit is not known for its blazing judicial battles. But the absence of opinions that provide dissertations on unresolved legal issues cannot mean Sotomayor is less qualified. The use of this standard would have rendered unqualified most of the justices in the Supreme Court's history.
I also find it disturbing that none of Sotomayor's negative reviewers demonstrates through independent analysis why Diane Wood or Elena Kagan -- persons whom Sotomayor is most often compared -- are more qualified to sit on the Supreme Court. Shapiro, for example, simply states that Sotomayor is "far less qualified for a seat on the Supreme Court" than Kagan or Wood. But Shapiro does not substantiate this claim by applying his own standards to Wood and Kagan. He does not cite to Wood's "important" decisions, and he does not review Kagan's articles that have reshaped legal analysis. Indeed, Kagan has a relatively thin publication record, given her acclaim and achievements, and many of her publications are in "home" journals (i.e., journals edited by students at the school where she was teaching at the time of publication), and significant portion are "tribute" articles that honor deceased jurists. Nevertheless, the popular analysis summarily describes Kagan as immensely qualified and Sotomayor as weak. What accounts for the difference?
I am not attempting to discredit either Kagan or Wood. Instead, I seek to reveal that Sotomayor's detractors have failed to make the case that she is an intellectual "lightweight" or that she is less qualified than others on the shortlist. Either her reviewers are sloppy journalists or they are moved to their positions by some motivation that has nothing to do with her work. Pick your poison.
I had originally intended to include Jonathan Turley on the list with Shapiro and Milbank. Earlier Turley stated that Sotomayor "is not the intellectual powerhouse that many academics had hoped for." He now says that:
Like a number of other professors and commentators, I have expressed disappointment in the fact that Sotomayor’s opinions lack of deeper view of the law or any particularly profound observations on the law. Conservatives, however, take this lack of depth in these opinions as evidence that Sotomayor is not smart or competent. This is demonstrably absurd.His more recent analysis offers a more engaging approach.