Rosen Versus Sotomayor: The Footnote Question

Jeff Rosen's recent piece in The New Republic attributing criticism of Judge Sotomayor to unnamed prosecutors and clerks for other Second Circuit judges has itself come in for quite a good deal of criticism (quoted with links here). I suppose reasonable people can differ over some of Rosen's methods but there is one aspect of the article that appears to bespeak inexplicable laziness on Rosen's part. I'm NOT talking about Rosen's disclaimer that he hadn't read enough of Judge Sotomayor's opinions to form an independent judgment about the quality of her work. That struck me as a fair admission; if the story were otherwise newsworthy, then it would be legitimate to run it with the disclaimer that it is a piece about what people say about her work, rather than an independent analysis thereof.

The seemingly inexplicable error is the following statement in Rosen's article:
Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants.
Yet, as Darren Hutchinson nicely explains (here), Judge Winter's footnote does not at all say that Judge Sotomayor misstated the law. The footnote says that lawyers were misrepresenting the Sotomayor decision in a way that made it look like it overruled a line of cases without mentioning that line of cases. Indeed, Judge Winter's footnote is not subtle about this. It rejects a proposed reading of the Samaria case (written by Judge Sotomayor) as standing "for the proposition that a conscious avoidance instruction is per se error in a conspiracy case where the substantive offense underlying the conspiracy charge requires proof of specific intent." Such a reading of Samaria, Judge Winter says,
would attribute to it the overruling of a long-standing line of cases in this circuit holding that, while evidence of conscious avoidance cannot support a finding that a defendant knowingly participated in or joined the conspiracy, it may support a finding that a defendant knew of the unlawful objectives of the conspiracy.
It's crystal clear, is it not, that Judge Winter is chiding the advocacy, not the judges who decided the Samaria case? This is so elemental, as Hutchinson notes, that one gets the feeling that Rosen himself must be incompetent.

Until one reads the Samaria case, which I did. Sure enough, Judge Sotomayor's opinion in that case does pretty much what Rosen says that Winter says (but Winter doesn't actually say) it does: It gives the impression "that a conscious avoidance instruction is per se error in a conspiracy case where the substantive offense underlying the conspiracy charge requires proof of specific intent." In particular, Judge Sotomayor's opinion in the Samaria case says:
Even assuming that the conscious avoidance instruction given to the jury in this case was proper, any such inference could do no more than establish Elaiho's knowledge of the criminal endeavor, not his specific intent to participate in the crimes charged.
Is that an inadvertent misstatement of the law that misled lawyers? I think probably not, but I could see how someone else might think it was.

Here's my entirely speculative hypothesis: Someone who was a law clerk for Judge Winter when the Juncal case (containing the footnote) was decided thought at the time that Samaria misstated the law, and this Winter law clerk had an unfavorable view of Judge Sotomayor. He or she urged Judge Winter to drop a footnote that would disavow the language from Samaria. Judge Winter did so, but not in a way that chided Judge Sotomayor. Now, eight years later, the former Winter law clerk pointed Rosen to the Juncal footnote as evidence of Sotomayor's supposed incompetence, perhaps forgetting that as written, the footnote assigns all blame to the lawyers rather than to Judge Sotomayor. Rosen then cited the footnote without bothering to read it.

Perhaps, however, Rosen actually read Samaria and concluded for himself that it misstated the law. But if so, then he should have said that as his own point, rather than misattributing the charge to Judge Winter, who clearly does not make it in his Juncal footnote. So either Rosen didn't read or didn't understand the Juncal footnote, or he did read and understand it but chose to mischaracterize it as a means of putting his own substantive point in the mouth of Judge Winter. Pick your poison.

Posted by Mike Dorf