My take: in this match we take a dive.
What the smart liberals wanted was to find a leftist Scalia, an intellectual heavyweight and lucid writer who could not just vote the right way, but set out principles of substance in a way that impresses and persuades the uncertain and undecided. A figure the liberals haven’t had for over 50 years, since Louis Brandeis left the court. And oh yes, and someone nice and collegial, who, unlike Justice Scalia, does not frequently alienate centrist judges by pointing out how dumb their opinions are.
Sonia Sotomayor is not such a person. 2 women who might have been the person liberals were looking for, Kathleen Sullivan and Pamela Karlan, didn’t make the final cut. Either of 2 of the final 4, Elena Kagan or Judge Diane Wood, might possibly have been that person. Although in the case of Wood I find it unlikely that someone who declares from the bench that because the Christian Law Society by excluding practicing homosexuals, its members do not regard them as full human beings is a very collegial person who is likely to win over centrists. Unless she also has superb acting skills.
Jeff Rosen, searching for that liberal Scalia, wrote an article that quickly became (in)famous detailing Sotomayor's inadequacy for the role of liberal saviour: Sotomayor, although an able lawyer,
It’s not that Sotomayor is dumb or unqualified. She’s obviously not. It’s that she’s not Brandeis or Warren. At best, she’s an Alito, not a Roberts. She’s no more liberal than Obama’s next nominee would be, if she were defeated. And is the fact that she’s the first Hispanic nominated to the court relevant? Sure. Why did the Democrats let Scalia sail through 96-0? Well, the fact that he was the first Italian-American ever appointed to the court didn’t hurt. The Democrats gave Clarence Thomas a good roughing up, but in the end let him through.
was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?")....
Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.
Mind you the GOP ought to pit up a bit of a fight for a few rounds. It’s fine to bring to the public attention her statement that a Latina woman is likely to make better decisions than a white male, and the couple other Kinsleyian gaffes that she has committed. But she’s smart enough to talk herself out of trouble for those statements at the hearings. Although she’s been the front runner for the next SCOTUS opening since Obama was elected, the GOP doesn’t seem to have much on her. There’s no point in the GOP copying the Kennedys and Leahys in hysterical and irrational opposition. It didn’t help their public image any.
So let’s spar for a few rounds and then throw in the towel. It coulda been a lot worse.