By Sam Singer
As a political contest, the fight over the Sotomayor nomination was over before it began. President Obama knew he had the numbers in the Senate. He knew Sotomayor was a thorny target for her predominantly white and male opponents, who would have to challenge her fitness for the bench while holding back tactless remarks about her ethnicity. This while mining a relatively uncontroversial judicial record for controversy, and all during the fleeting moment after a nomination in which the public is actually paying attention. This nomination may go down in judicial history as the Two Day War; the indispensable SCOTUSblog says “It’s Over.”
But if the political fight is a foregone conclusion, the debate in the legal community is just getting under way. More than most nominees in recent memory, Sotomayor’s background lends itself to a close examination of prior case law. Her tenure on the Second Circuit produced a paper trail long enough to occupy legal journalists for months. As scholars sort it out, they’ll add new dimensions to the public’s understanding of Sotomayor’s judicial inclinations. The deeper they dig, the better sense we’ll have of her place on the Court.
What follows is a list of writers who, when not steering this discussion, are regularly weighing in with meaningful contributions. I provide it not as an exhaustive list but as a representative sample, with confidence the writers themselves will point you toward other worthwhile contributors.
* Tom Goldstein. Goldstein co-heads the litigation practice at an elite Washington law firm. When he’s not doing that, he is arguing cases before the Supreme Court. When he’s not doing that, he’s writing about the Supreme Court. Goldstein’s dual roles as reporter of and advocate to the Supreme Court make him one of the most clued-up writers in Washington. Along with the resources of a powerful Washington attorney, Goldstein has the deadline-beating itch of a young reporter: here’s a 1,500-word analysis of the Sotomayor nomination posted three hours before the President announced. The combination makes him an impossible act to follow on the Supreme Court beat.
* Slate has two talented correspondents in Dahlia Lithwick and Emily Bazelon. Lithwick is an effortless writer with a surprisingly extensive legal background. But it is how she animates the Court and its archaic procedures that sets her apart from her contemporaries in the popular press. Since Souter retired, Lithwick has spent more time beating back vitriol from the right than she has developing an outlook of her own. This is unfortunate, in part because Lithwick can’t fully showcase her intellect when she is in a reactive posture, but also because movement conservatives are an irrepressible bunch – way too much for one young writer to contain. In this sense, Lithwick is left standing with a mop in a flood zone.
* Adam Liptak. Liptak, the New York Times’s Supreme Court correspondent, isn’t in the same class as Linda Greenhouse, his Pulitzer Prize-winning predecessor. That said, Liptak is believed to have inherited Greenhouse’s rolodex of sources, so it would be a mistake to overlook his coverage as the nomination process unfolds. For Greenhouse fans, here’s a cameo Op/Ed addressing the Sotomayor pick.
* Ed Whelan. There are writers with legal backgrounds and there are lawyers with writing backgrounds. In this latter category, Whelan stands out as one of the conservative legal establishment’s sharpest thinkers and at that, one of its best hopes of being taken seriously on the left. Whelan made a splash early in the nomination process with a string of essays questioning the conventional wisdom that Seventh Circuit judge and frontrunner Diane Wood was a moderate jurist. Wood’s qualifications aside, Whelan demonstrated a strong grasp of Wood’s judicial record. His analysis was a welcome departure from the sound bite-driven attacks favored by movement conservatives.
* Jan Crawford Greenburg. You may remember Greenburg from the years she spent covering the Supreme Court for the Tribune. As one of the busiest media personalities in Washington, Greenberg can’t be relied upon for day-by-day coverage. Still, when she writes, it’s because she has something important to say. More often than not, that something is breaking news. She remains one of the most plugged-in legal reporters in the country.
Of course, along with regular contributors, you’ll want to monitor the Op/Ed cycle for outside opinions. Editorial pages are flooded with guest viewpoints on the nomination. Howard Bashman does a commendable job aggregating them. In separating wheat from chaff, look for law professors; an author’s employment at a major law school is a strong indicator that he or she has something gainful to contribute.
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Sam Singer is the Beachwood’s legal correspondent. He welcomes your comments.
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Previously by Sam Singer:
* Is TARP legal? Court to decide on laugh test.
* Taking Government Out Of The Marriage Business. Separating church and state.
* Chicago’s Disorderly Conduct. Dissent allowed even in Daleyland
* Why Google Will Win. Newspapers are on the wrong side of the digital revolution.
* Is Blago A Flight Risk? We asked; a judge said yes.
* Obama’s Torture Test. Politically calculating.
* Replacing Souter. Signs point to Kagan.
* Going to Pot. The states vs. the feds.
Posted on June 1, 2009