When I agreed to testify in the Trump impeachment hearing, I knew that that I would be attacked for my testimony. With roughly 54 pages of testimony, there would be ample areas of good-faith disagreement. The surprising thing was the tsunami of attacks for things that I did not say. The most vile was that I previously said that Justice Sonia Sotomayor “wasn’t smart enough for the Supreme Court.” That false story appears to be traced to a tweet from from another law professor, Baltimore Law Professor Garrett Epps stating “Does anybody else remember @JonathanTurley appearing on MSNBC to explain that Sonia Sotomayor didn’t have the intellect to serve on the Supreme Court?” I certainly don’t because I never said such a thing. However, Epps and an array of reporters did not feel that such a statement required a modicum of actual research. (I am giving Professor Epps the benefit of the doubt that he did not actually watch the video that he linked. If he did, he clearly chose to ignore where I clearly state a very different point about Sotomayor’s opinions while saying that she could still emerge on the Court as a great justice like Justice John Paul Stevens).
When then-Judge Sotomayor was nominated, I was asked as a legal commentator to review her opinions and give my view of what that body of work suggested about her potential on the Court. I raised the identical objection that I made of the pre-nomination work by Stevens, Samuel Alito, David Souter, and others. They all had relatively short and unimpressive decisions before joining the Court. My point was simply that intellectual leaders on the courts are rarely selected for the Supreme Court. Before Sotomayor’s appointment, I cited various liberal judges like Judge Diane Wood who had already proven to be intellectual forces on their respective courts. However, as with Alito and others, those leading jurists were bypassed.
The fact that I said that same thing about justices from John Paul Stevens to Samuel Alito also does not matter. Likewise, it does not matter that I was making this point in arguing that Obama missed an opportunity in Diane Woods, who I had advocated as the best nominee before Sotomayor’s selection. (The fact that I called for the nomination of Woods over Sotomayor did not prevent commentators like Colin Kalmbacher from suggesting that I was motivated by sexism in describing these opinions — as many others did — as narrow and unremarkable).
Given my earlier column on intellectual leaders among liberal jurists, I was repeatedly asked about how Sotomayor’s opinions stacked up to not just my preferences of Woods but conservative powerhouse Antonin Scalia. I was also critical of opinions by Sotomayor that I viewed as inimical to free speech rights.
In the specific interview cited by Epps, I stated:
“I’ve read roughly about 30 of these opinions. She has a much larger library of opinions. But they are notable in one thing. And that is a lack of depth. There is nothing particularly profound in her past decisions. She’s been a judge a long time. That’s opposed to people like Judge [Diane] Wood on the Seventh Circuit — and she was viewed as a real intellectual powerhouse. You really can’t read the opinions of this nominee and say: “Oh yeah, this person is a natural choice for the Supreme Court.”
I then immediately stated that this is not unique and that other justices have had such short and unremarkable appellate opinions but proved more profound on the Court. I expressly compared Sotomayor to Stevens who have I long praised. I also stated that Sotomayor could prove a truly great justice but that her opinions do not offer any glimpse into how she might emerge in such a role.
Neither Epps nor those who repeated his false suggestion bothered to note other statements that I made in defense of Sotomayor. For example, after the nomination, I also stated that following:
Like a number of other professors and commentators, I have expressed disappointment in the fact that Sotomayor’s opinions lack of deeper view of the law or any particularly profound observations on the law. Conservatives, however, take this lack of depth in these opinions as evidence that Sotomayor is not smart or competent. This is demonstrably absurd. These opinions are little different from those of Alito, Souter, or the limited writings of Thomas. Clearly, Sotomayor is quite intelligent. This record is little different from records of Republican nominees who enthralled these same critics.
Here is another column around the same time making the same point:
“Sotomayor is a relatively rare commodity in that, unlike many past nominees with few written opinions, she has hundreds of opinions over the course of 18 years. Review of these opinions by academics and newspapers describe Sotomayor’s opinions as extremely narrow and conventional. There is no single opinion that stands out as particularly profound or clearly establishes why Sotomayor should be elevated to the court — though this does not distinguish her from other recent nominees like Samuel Alito.”
As I noted in that column, many of us were saying that same thing about these opinions on all of the networks: they were narrow, short, and conventional. They were therefore unhelpful in judging Sotomayor’s potential on the Court and gave no guarantee that she would prove an intellectual leader.
Thus, not only does that specific interview expressly discuss Sotomayor’s opinions and not her intellect, but I expressly rejected any use of these opinions to make assumptions about her intellect or potential as a justice. Nor does it apparently matter that I have praised Sotomayor for her opinions as a justice because she has done previously what I suggested: come into her own as a jurist on the Court just as Stevens and others did. By the way, the analogy to Stevens was to the contemporary justice I have most admired and the example of a jurist blossoming on the court in finding his voice and depth.
However, it does not stop there. Colin Kalmbacher reported Epps’ tweet and added that I “unprompted . . . brought Sotomayor’s race and gender into the 2009 discussion on MSNBC.” That is perfectly bizarre. Virtually every story and commentary noted that historical significance of Sotomayor as the first Latina on the Court. I raised it to say that people could be “rightfully” proud of that historical distinction. As a legal commentator, any review of this nomination would have been incomplete without noting that distinction. Moreover, hundreds of stories on MSNBC and other news outlets “unprompted” noted the historic distinction. I then returned to the original question on whether Sotomayor’s opinions suggest that she would be transformative intellectual leader on the Court. The opinions simply did not offer such an indication, but she is not unique in that way (hence my expression and favorable comparison to Stevens).
I have long objected to the failure to select proven intellectual leaders like Diane Woods, Richard Posner, and Guido Calabresi for the Court. (Notably, Posner has also criticized the lack of intellectual leaders on the Court). For decades I have been a critic of our nomination process. (here and here and here and here and here). All of these opinions make the same objection over the course of decades that we no longer nominate proven intellectual leaders. Indeed, one of the reasons I agreed to testify at the confirmation hearing of Neil Gorsuch was that he was an exception to this trend.
This rather lengthy account only quotes a fraction of the writing and commentary directly contradicting Epps’ irresponsible statement. My point is really over the declining state of legal commentary. What matters is the total disregard of the truth in order to paint a fellow academic as some form of racist or sexist. To put it simply, I would never have tweeted such a claim about another academic without reading his full commentary or noting that the specific interview clearly refers to the opinions and not the intellect of then Judge Sotomayor. However, in this age of rage, civility (like reason) remains a stranger.