Imagine, if you will, an expert on the federal judiciary told a Washington Post reporter a few years ago during the Sam Alito nomination that the conservative jurist took "a kind of carpet-bombing" approach to the law, showing a determination "not to just defeat the other side, but to annihilate it" when rendering his opinions from the bench.
It's hard to image that being buried deep in an article on the jurist.
But of course the nominee in question isn't Alito, it's President Obama's pick of Judge Sonia Sotomayor to replace outgoing liberal Justice David Souter. Post reporter Jerry Markon opened his July 9 front-pager -- "Uncommon Detail Marks Rulings by Sotomayor" -- by noting Sotomayor's "unusual" attention to detail for an appellate judge.
"Her writings have often offered a granular analysis of every piece of evidence in criminal trials, and sometimes read as if she were retrying cases from her chambers," Markon noted in his second paragraph. Two paragraphs later the post staffer introduced Arthur Hellman, "a University of Pittsburgh law professor and an authority on federal courts," to remark that Sotomayor spends "endless hours delving into the minutiae of the record."
Yet Markon waited until the 26th out of his article's 30 paragraphs to reintroduce Hellman with this biting critique of the 2nd Circuit judge:
Hellman, the law professor, called Sotomayor's approach "a kind of carpet-bombing, a relentless mustering of facts. She goes well beyond what is necessary for the case and is determined not to just defeat the other side, but to annihilate it."
What's more, Markon also buried further scathing criticism of Sotomayor by packing at the close of his article remarks from a Democratic-appointed judge who once chastised Sotomayor in a dissenting opinion for her penchant for substituting her own -- "wise Latina"? -- judgment of the facts for that which was established by a judge and jury at the trial court level (emphasis mine):
Sotomayor's style is consistent even when she finds against defendants, such as when she affirmed the conviction of a child pornography defendant in 2004. A U.S. district court judge had concluded after an evidentiary hearing that the man was innocent but denied his petition because it was filed too late.
Even though she had decided the core issue -- the conviction -- Sotomayor broke down the witnesses and testimony at the judge's hearing. She concluded that his finding of innocence was "clearly erroneous," even as she said that district courts "are generally best placed to evaluate testimony in light of the witnesses' demeanor."
A fellow Democratic appointee, Judge Rosemary S. Pooler, dissented. Sotomayor's opinion, she wrote, was based on "speculations and conjectures" and disregarded the judge's "role as the finder-of-facts."
"It is inappropriate in all but the most extraordinary cases for this Court to second-guess a district court's credibility findings," Pooler concluded. "The majority's dissection of the district court's decision departs from our precedents and wrongly supplants the lower court's assessment of the evidence with its own factual inferences, never having seen or heard any of the testimony that it now seeks to discredit."
Far from being a matter of ideology, this criticism gets to the heart of Sotomayor's judicial temperment and her respect for her colleagues throughout the federal judiciary. Unfortunately the choice to bury this passage at the very bottom of the article communicates to readers that the Post finds Pooler's criticism to be the least important item in this story.
