On Monday, the New Republic's prominent legal analyst Jeffrey Rosen published a rumor-filled assessment of Obama Supreme Court short-lister, Sonia Sotomayor. And by Thursday, as ThinkProgress reported, what Glenn Greenwald deemed Rosen's "anonymous smears" and "a model of shoddy journalism" were being parroted throughout the media. But as to why Rosen took a tabloid approach to evaluating Sotomayor, his motivation may be simple. Jeffrey Rosen may be trying to compensate for his early cheerleading for - and subsequent buyer's remorse over - John Roberts.
Years before concluding, "The most consistent concern [from former clerks] was that Sotomayor, although an able lawyer, was 'not that smart and kind of a bully on the bench,'" Rosen portrayed Bush nominee and Chief Justice John Roberts in almost hagiographic terms.
In his 2007 PBS series and accompanying book, The Supreme Court: The Personalities and Rivalries That Defined America, Rosen anticipated betters days for institution of the Court under Roberts' calm direction. Rosen painted a promising picture of Roberts as a worthy successor to the first Chief Justice, John Marshall, whose collegiality and search for consensus and unanimity strengthened the Court during its turbulent formative years.
"Those of us who supported Roberts never denied his conservatism. The question was: Who among the candidates President Bush was plausibly inclined to appoint as chief justice would be most likely to avoid the radicalism of Scalia and Thomas and try to unify the Court? In his first term, which began in October 2005, Roberts entirely vindicated these hopes."
In a January 2007 interview with the George Washington University professor, Jason Harrow of SCOTUSBlog observed about Rosen's book and Atlantic article ("Roberts' Rules"), "it's hard not to notice how often you compare the current Chief to the great John Marshall." Rosen responded:
"I was impressed by the new Chief's familiarity with the legacy of his greatest predecessor - and his determination to resurrect it...As for the question of whether it's as important to achieve unanimity as it was in Marshall's day: Roberts argued that it's just as important: if the justices continue to behave like law professors and to issue lots of separate opinions, they may squander the reserves of legitimacy that Marshall built up... Whenever the Court gets dramatically out of step with the public, and issues intensely controversial, narrowly divided opinions, all of that carefully hoarded legitimacy can go out the window. That's why I'm persuaded by Roberts' argument that resurrecting Marshall's vision is all the more important in a polarized age."
And then Jeffrey Rosen was mugged by reality.
As I first detailed in July 2007, rather than displaying greater unanimity and continuity, the Roberts' Court during the previous term casually tossed aside precedents and produced a fractured bench repeatedly hinging on the swing vote of the prima donna Anthony Kennedy. Rosen's buyer's remorse was clear on the pages of the New Republic. Roberts' butchery of the meaning of Brown v. Board of Education in the Seattle schools race-based admissions case drew the ire of Rosen and his fellow editors. And in the same July 23rd issue, Rosen aired his disappointment in a piece titled, "Will Roberts Ever Get Better?"
"Although Chief Justice John Roberts began the term by calling for greater consensus, a third of cases were decided by five-to-four votes, the highest percentage in more than ten years. The polarization inspired the four liberal justices to write some of their most passionate, incisive, and memorable dissents."
Echoing Rosen, New York Senator Chuck Schumer groused that his Democratic colleagues were "too easily impressed with the charm of Roberts" and concluded, "There is no doubt that we were hoodwinked."
TNR's Jeffrey Rosen probably feels the same way. Burned by his overeager comparison of Roberts to the legendary John Marshall, Rosen apparently doesn't want to make that mistake again. In turning to gossip and innuendo to question her "temperament," Rosen decided that Sonia Sotomayor will pay the price.