Secretly Selling Sotomayor

By Howard Kurtz
Washington Post Staff Writer
Wednesday, May 27, 2009 9:40 AM

Less than an hour after President Obama announced his Supreme Court nominee yesterday, two "senior administration officials" began holding forth for reporters on the virtues of Sonia Sotomayor.

Several journalists in the Roosevelt Room briefing protested, saying there was no reason the officials couldn't speak on the record. One of the briefers, senior adviser David Axelrod, would be making a similar case on Fox News, CNN, MSNBC and PBS within hours. But Press Secretary Robert Gibbs stood his ground: No names could be attached.

The effort to buttress the appeals court judge's nomination from behind a curtain of anonymity highlights the administration's determination to frame the narrative, even as cable news pundits and bloggers were alternately praising and criticizing Sotomayor.

"We protest in the strongest terms the Obama administration's frequent use of briefings done on a background basis . . . especially when the same officials briefing often appear ubiquitously on television shows with similar information," said Jennifer Loven of the Associated Press, president of the White House Correspondents Association. She said this was particularly true on a Supreme Court nomination, "when the issue does not involve sensitive material such as national security information."

Asked for a response, Gibbs said it was "interesting" that the AP had no qualms about relying on unnamed "officials" in breaking the news of Sotomayor's nomination before the White House made it official. "I'm not sure today is the day I'd make that argument," he said.

While the Obama administration is hardly the first to use background briefings, journalists have complained about the ground rules several times this year. Reporters for the AP, New York Times and Washington Post, among others, objected at yesterday's session for print journalists. But there was no controversy at a separate briefing for television correspondents, who tend to care less about how information is conveyed when the subjects are not on camera.

The White House briefers -- Axelrod and Ron Klain, Vice President Biden's chief of staff -- found themselves discussing questions about Sotomayor's temperament, raised by sources -- also unnamed -- in a widely quoted New Republic piece. The briefers said Sotomayor was "unapologetic" about being "tough" on unprepared lawyers and that the high court was not a place for "shrinking violets." While they provided useful tidbits on the selection process, journalists say, they also echoed arguments that Obama had already made before the cameras.

The May 4 article in the New Republic -- "The Case Against Sotomayor" -- is by Jeffrey Rosen, a law professor at George Washington University and the liberal magazine's legal editor. "I deeply regret the headline," Rosen said yesterday. "I didn't see it. It didn't represent the intent of the piece."

In the article, Rosen quoted one former appellate clerk as saying that Sotomayor is "not that smart and kind of a bully on the bench."

Rosen said it is "impossible" to get candid on-the-record comments from lawyers and clerks who have to deal with a sitting judge and that his sources were Democrats who wanted the most effective liberal nominee. He said he is "disappointed" that conservatives are using the article as an argument against confirmation.

A media debate over Sotomayor erupted immediately after the AP reported her selection at 8:25 a.m., nearly two hours before Obama's announcement. There had been earlier skirmishes because Sotomayor was high on every media organization's list of possible appointees, unlike in some previous instances where the nominee -- Harriet Miers, for instance -- came as a surprise.

Before word leaked yesterday, Karl Rove, who helped vet judicial nominees in the Bush White House, said on Fox that Sotomayor is an "unabashed liberal." Once the selection was confirmed, Rove said she "will not be a consensus leader" and "is not liked by her colleagues."

On MSNBC, Mark Whitaker, NBC's Washington bureau chief, said Sotomayor has a "very compelling life story" that will be "very hard . . . for the Republicans to attack." And CNN's Jeffrey Toobin said that "she doesn't look like a liberal firebrand."

As the day wore on, Fox raised criticisms of Sotomayor more frequently than its cable rivals. The network played a YouTube video, circulating in recent weeks, in which Sotomayor said at a 2005 conference that the "Court of Appeals is where policy is made. I know this is on tape and I shouldn't say that," adding that she was not "promoting" such an activist approach.

Fox also kept returning to a 2001 speech in which Sotomayor said, "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life." Anchor Megyn Kelly said "that sounds to a lot of people like reverse racism."

Some critics say her Hispanic heritage and modest background should play no role in judging her fitness for the high court. But after Sotomayor spoke of being raised by a single mother in the South Bronx, MSNBC's Chris Matthews said: "I would hate to be a senator on the Judiciary Committee who tried to give that person a hard time." CNN's Toobin declared: "That was the face of the new America." Fox's Brit Hume said a person with a "compelling personal story" had an advantage "because the public in America loves to see people who are in disadvantaged groups get ahead."

One hint that the coming media melodrama may lack tension: No television commentator predicted that Sotomayor would be defeated.

How much were news outlets scrambling yesterday morning? Politico said Republicans "will have to decide how directly and sharply they want to attack a Latina single mother." Sotomayor has no children.

Let's look at the morning papers before moving on to the blogosphere.

L.A. Times: "Rush Limbaugh called her a 'reverse racist.' The conservative Judicial Confirmation Network said she was an activist with a 'personal political agenda' and should be blocked from the Supreme Court.

"But underneath the predictable bombast from conservative groups that had been waiting to pounce on whomever President Obama picked to fill his first vacancy on the court, the nomination Tuesday of Sonia Sotomayor brought a surprising development: The Republican senators who will actually vote on her were not following the activists' script.

"Instead, GOP senators offered muted, sometimes admiring, responses, and seemed to be taking their cues from a quieter group of voices within the party cautioning that to oppose the country's first Latina Supreme Court nominee would amount to political suicide."

New York Times: "Judge Sonia Sotomayor's judicial opinions are marked by diligence, depth and unflashy competence. If they are not always a pleasure to read, they are usually models of modern judicial craftsmanship, which prizes careful attention to the facts in the record and a methodical application of layers of legal principles.

"Judge Sotomayor has issued no major decisions concerning abortion, the death penalty, gay rights or national security. In cases involving criminal defendants, employment discrimination and free speech, her rulings are more liberal than not. But they reveal no larger vision, seldom appeal to history and consistently avoid quotable language. Judge Sotomayor's decisions are, instead, almost always technical, incremental and exhaustive."

Boston Globe: "The Sotomayor storyline almost immediately split in two directions -- a heartwarming narrative of Horatio Alger proportions to her defenders, and a cautionary tale of liberal judicial activism to her critics."

USA Today: "As a successor to the liberal Souter on the divided, nine-member court, Sotomayor is not likely to tip the ideological balance of the bench. Yet she would bring diversity to the court -- whose members include eight whites and one African American (conservative Clarence Thomas) -- not only in her ethnicity, but in how she arrived at the high court."

The New York Post goes with the local angle: "KID FROM BRONX REIGNS SUPREME."

Perhaps it was inevitable that Sotomayor's gender and ethnicity would become part of the debate. But come on -- didn't Bush 41 play up Clarence Thomas's modest beginnings in Georgia (and, implicitly, his race)? Those who thought that was just fine have no business crying foul now if Sotomayor talks about growing up in a housing project.

What's more, didn't Ronald Reagan take gender into account in choosing an obscure Arizona judge named Sandra Day O'Connor? If these things didn't matter, we could just have nine white men forever, right?

National Review's Ramesh Ponnuru compares Sotomayor to . . . Harriet Miers!

"What I'm suggesting is that both nominees were picked because they were women, because they were members of politically valued groups (evangelicals in Miers's case, Hispanics in Sotomayor's), and because they were considered politically reliable by the people who picked them. Neither was picked based on her impressive legal mind, although the pickers in each case doubtless believed that the nominee exceeded some threshold level of competence."

Jason Zengerle dismisses that argument in the New Republic:

"The criticism resonated when it was made against Miers, after all, because of her resume (undergrad and law degrees from Southern Methodist University) and her close personal relationship with Bush (who first hired her as his personal lawyer when he was Texas Governor and later brought her along to Washington to work in the White House). Indeed, it's pretty much inconceivable that any President other than Bush would have ever dreamed of her nominating her to the Court.

"The same just can't be said about Sotomayor, who went to Princeton for undergrad and Yale for law school, and who was being talked about as a potential Supreme Court nominee when Bill Clinton was president."

Here's the same debate from a different angle. American Prospect's Adam Serwer goes after the aforementioned Jeff Rosen piece in TNR:

"Rosen was candid enough to admit that he hadn't 'read enough of Sonia Sotomayor's opinions to have a confident sense of them' and that he hadn't 'talked to enough of Sonia Sotomayor's detractors and supporters to get a fully balanced picture of her strengths.' As I wrote at the time, the subtext of such arguments, which any person of color in the Ivy League has faced, is that people of color who accomplish anything resembling success are simply the undeserving recipients of preferential treatment. Note that this line of argument was raised against the president of the United States, and persisted among the right for some time.

"Isn't it a funny coincidence that all accomplished people of color are secretly dumb? (That isn't necessarily a partisan observation -- whether or not Clarence Thomas was 'qualified' to serve on the Supreme Court is different from the question of his intelligence. Liberals, then and since, often fail to make the distinction."

Washington Monthly's Steve Benen makes a similar point:

"Attacking Supreme Court nominee Sonia Sotomayor for being insufficiently right-wing makes perfect sense. Attacking her intelligence is not only ridiculous, it's offensive.

"Sotomayor, a lower-court nominee of both the H.W. Bush and Clinton administrations, has a background that should shield her from such nonsense: top of her class at Princeton, Yale Law School (editor of the Yale Law Journal), successful big-city prosecutor, corporate litigator, trial judge, district court judge, appeals court judge. She's earned the respect and admiration of her clerks, colleagues, and the lawyers who've argued before her. Sotomayor's intellect is not in doubt. And yet, it's the issue some of the far-right's leading activists have decided to hang their hat on."

Intellect aside, some are questioning whether the president chose Sotomayor because she is Hispanic (and obviously it was a factor). David Frum says that what Obama did was "pick the justice he deemed most likely to secure him a demographic constituency in 2008. This is pure Chicagoland politics, using one of the president's most important powers for the most narrow partisan purposes."

Wasn't Bush 43, whom Frum worked for, aiding his partisan side in picking Roberts and Alito? Is it just less pronounced when the side is conservative white men?

In fact, Joe Conason says in Salon, the nominee's background is to be celebrated:

"Sotomayor represents everything that a president choosing his first justice in his first term could desire. As a female her elevation would begin to bring gender equity to a forum where historically men have exercised far too much unchallenged power over the lives of the women. As a Latina, her rise would symbolize the next stage in the full enfranchisement of immigrants whose language, status and poverty have too often turned them into scapegoats for the cultural and economic costs of globalization."

In the Weekly Standard, Fred Barnes says Sotomayor's chances of winning confirmation are a mere 95 percent:

"Things turn up. No matter how extensively an administration investigates a nominee, it can't look into everything. Meanwhile, the national visibility of a Supreme Court nominee, like that of a presidential candidate or a Cabinet pick, has a way of bringing out damning information from detractors who otherwise wouldn't get involved.

"There may be nothing troubling in Sotomayor's past, but we don't know for sure. In 1991, Clarence Thomas was considered a sure bet for confirmation until Anita Hill was coaxed by friends into testifying against him. Hill's story may or may not have been true (I didn't believe her), but she nearly derailed the Thomas nomination."

Somehow I don't think we're going there.

Last word goes to former Bush adviser Mark McKinnon, who tells his party to avoid a suicide mission:

"Let's face it, Sotomayor is a political trifecta. Woman. Hispanic. Good Housekeeping Seal of Approval from George H. W. Bush . . .

"Sotomayor is going to be confirmed. There is little doubt about it. So, going into weeks or months of paroxysms and hysterics about alleged 'judicial activism' is just going to make the party look bitter, mean, tone deaf, and out of touch."

I don't see a problem with a good, substantive debate about judicial philosophy. But such debates, in Washington, often turn personal.

Finally, remember how appointed Illinois senator Roland Burris said he hadn't made any deals to get the job? Ah, not so much:

"A month before his appointment to the U.S. Senate, Roland Burris agonized with the brother of then-Gov. Rod Blagojevich about how to raise campaign cash for the governor without creating the perception he was buying his way into Congress, according to a federal wiretap unveiled Tuesday.

"Burris said he would make a personal donation but worried that both he and the governor could eventually 'catch hell' for any campaign help Burris gave as he lobbied for Blagojevich to choose him," the Chicago Tribune reports. " 'And if I do get appointed, that means I bought it,' Burris was recorded telling Robert Blagojevich . . . "

Talk about a Faustian bargain.

Howard Kurtz hosts CNN's weekly media program, "Reliable Sources."