Big Tent Democrat notes, with respect to Jeffrey Rosen's defense of his Sotomayor article, that Rosen's attempt to use statements from anonymous sources to predict judicial "temperament" and its effects have a pretty dubious track record.
An even better example of this can be seen in the work of Stuart Taylor. Consider, first, his use of this type of "evidence" to attack Sotomayor: "There is a widespread perception on the right and among some moderates who have seen her close up that she is far more liberal than anyone now on the Court." Not only was this not supported by evidence from her legal opinions, Taylor (in a statement that, to his credit, he's retracted) asserted that "[s]ome conservatives claim she masquerades as a moderate because she is running for the Court," making a point that is not only unsupported but conveniently non-falsifiable. (In addition, even if this highly implausible claim had been true, why is that an argument against the confirmation? Why does "Rockefeller Republican" have to represent the leftward-most point on a Court that currently has the four most reactionary justices since 1940 serving on it?)
Compare these claims about Sotomayor with his statements about Sam Alito, where he attempted to defend his belief that the nominee would be a center-right practitioner of "judicial restraint":
Not to mention the critics' efforts to drown out the virtually unanimous praise voiced by the many moderates and liberals (as well as conservatives) who know Alito well: colleagues (current and former), classmates, friends, and former law clerks. Sure, they say, Alito is a conservative. But he also believes deeply that judges should be constrained by established legal rules and hard facts—and should not be looking to promote political agendas.
So, sure, there was overwhelming evidence from Alito's own statements and his judicial record that he was 1) if anything, a more doctrinaire conservative than Scalia (which he has proven to be) and 2) did not practice judicial restraint in any (non-tautological) sense of the term, as like most conservative judges, there are many issues -- gun control, affirmative action, campaign finance -- on which he doesn't believe that courts should defer to elected officials on ambiguous constitutional questions, and on all of these plus a number of others he's been happy to effectively overrule precedents he disagreed with as well. But, hey, if clerks are willing to defend him with some empty banalities or defend his unquestioned competence, that's much more important.
This type of evidence, in other words, is almost entirely useless, and 99 percent of the time will just end up validating the prejudices of the pundit in question whether they're justified or not. (And in Sotomayor's case, this is true in more than one sense of the term.) If you want to know about a judge, stick to a careful analysis of her record and relevant statements.
--Scott Lemieux
