Academic journal article Emory Law Journal

Sonia Sotomayor and the Construction of Merit

Academic journal article Emory Law Journal

Sonia Sotomayor and the Construction of Merit

Article excerpt

ABSTRACT

The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply "not that smart." For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative Justices like Antonin Scalia, Samuel Alito, and John Roberts. Using a set of basic measures of judicial merit, such as publication and citation rates for the years 2004 to 2006, when Sotomayor was on the Court of Appeals for the Second Circuit, we compare her performance to that of her colleagues on the federal appeals courts. Sotomayor matches up well. She might turn out to be more of a force on the Court than the naysayers predicted.

I. "NOT NEARLY AS SMART AS SHE SEEMS TO THINK SHE IS"

When President Barack Obama was considering whether to nominate to the Supreme Court Sonia Sotomayor, then a judge on the United States Court of Appeals for the Second Circuit, a prominent law professor, Laurence Tribe, wrote a letter to the President opposing Sotomayor's potential nomination on the ground that "she's not nearly as smart as she seems to think she is."1 While Tribe's assessment was intended as a private communication, others were saying something similar in public.2 Jeffrey Rosen, another legal academic, wrote an article in the New Republic questioning Sotomayor's merit.3 Based on anonymous sources, Rosen reported that there was widespread skepticism among the judges and academics familiar with Sotomayor's work regarding her capabilities for the job.4 The consistent theme was a concern that Sotomayor was simply "not that smart."5 Even those on the Democratic side of the aisle, Rosen noted, appeared to have misgivings about Sotomayor's intellectual capabilities.6

It was not long before the conventional narrative became that Sotomayor was a mediocre legal mind.7 Commentators accused President Obama of having sacrificed merit for identity politics ("biography over brain," in the words of Washington Post commentator, Dana Milbank).8 For many, she was not in the pool of the best qualified candidates, even if it was the case that Obama wanted to pick a female Justice.9 There were others, such as Diane Wood, a former law professor at the University of Chicago and judge on the Seventh Circuit, and Elena Kagan, the former dean of the Harvard Law School and, at the time, Solicitor General of the United States, whom they thought were smarter and more deserving.10 While supporters of Wood and Kagan often depicted them as brainy or brilliant, some of Sotomayor's supporters described her as workmanlike and competent.11

To us, a striking aspect of Sotomayor's nomination was that this public and negative assessment of her merit was made without much factual support. One might even argue that the initial presumption should have been in her favor. After all, she graduated with honors from Princeton University, graduated from Yale Law School, and spent more than a decade on the court of appeals, following stints as a trial judge and a federal prosecutor.12 It is hard to look at her credentials and conclude reflexively that she was unqualified for the Supreme Court-that is, unless one applied a high discount to her achievements on the theory that her success was largely attributable to affirmative action.13 A theme running through much of the public discussion of her candidacy was that this appointment, more than most, represented the triumph of identity politics over merit.14 One could not escape the fact that she was going be the first Latina on the Supreme Court or that President Obama had considered and nominated her in part because she was Latina.15

Our goal in this Essay is to provide some data against which to test the claims of Sotomayor's mediocrity. …

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