David Frum (American Enterprise Institute) on Judge Sonia Sotomayor: Subprime Reporting

David Frum of the American Enterprise Institute took the air last night—and the blogosphere—to blast President Obama’s nomination of Judge Sonia Sotomayor. In his diatribe “Sotomayor not a justice for these times,” Frum attacked Judge Sotomayor as someone “whose experience of business law is abstract and academic.”

“Abstract and academic”?  Does anybody fact check anything anymore? 

David Frum has no idea what he is talking about. Judge Sonia Sotomayor was an attorney in a commercial litigation firm in New York City from 1984 (after prosecuting cases for District Attorney Morgenthau in Manhattan) until 1992 (when she was sworn in as federal district court judge, nominated by President George H. W. Bush). 

At the law firm, Sonia Sotomayor represented large corporations in complex commercial litigation, specializing in trademark and unfair competition disputes. As the White House press release notes:

 “She entered private practice in 1984, becoming a partner in 1988 at the firm Pavia and Harcourt. She was a general civil litigator involved in all facets of commercial work including, real estate, employment, banking, contracts, and agency law. In addition, her practice had a significant concentration in intellectual property law, including trademark, copyright and unfair competition issues. Her typical clients were significant corporations doing international business.”

“Abstract and academic” and for that reason, “not a justice for these times”? How can so many responsible organizations—American Enterprise Institute, Marketplace, public radio, WBEZ—allow Frum to disseminate such incorrect information? 

I wonder whether that this is the beginning of David Frum’s effort to swiftboat Judge Sotomayor. If Frum has any integrity, naturally, he would retract his commentary and support Sotomayor’s nomination for the reason he discusses. On Frum’s view, Sotomayor is the ideal nominee, one of the few individuals ever nominated to the Supreme Court who has had extensive hands-on commercial and corporate litigation experience—just the person Frum would want on the Supreme Court.  It will be interesting to see what Frum does and whether AEI, public radio, Marketplace, or WBEZ, respond in any way.

It also raises troubling questions about the financial difficulties that newspapers, radio stations, and other media are facing. As media outlets falter, there is an increasing reliance on “blog as reporting” – on news organizations turning to free (or practically free) content providers who are not qualified to comment and who do not fact-check their work. They are, of course, far less expensive.  No need for reporters, editors, fact-checkers, researchers, librarians, etc. It’s a bonanza for the media, but a travesty for the rest of us. It feels that we are entering the age of "subprime reporting."   

*****

Note: For purposes of full disclosure, I am related to Edgar A. Harcourt who was a named partner at Pavia & Harcourt, where Judge Sonia Sotomayor practiced law.

Comments

[Uzair Kayani]

This is an interesting note. I do not know how competent traditional media are at fact-checking but it is clear that we are living through an important transformation of "the press." Newspapers rely significantly on blogs and sources like Wikipedia. This isn't bad in itself: Wikipedia appears to correct itself more quickly than newspapers or radio reports ever did. An undergraduate at Dublin ran an amusing test recently to confirm this. See the link below:

http://www.msnbc.msn.com/id/30699302/

The problem is really at the level of professional journalism rather than blogs and the like, and I am not sure it is worse than before. The result should be for these professional sources to lose their credibility over time. They do not have the sort of opacity, monopolistic power, or rating agency imprimatur etc that might allow them to maintain credibility when they engage in demonstrably bad reporting.

It would be interesting to see what happened to newspapers during the Great Depression. My guess is that many failed; however, newspapers back then probably catered to a narrower audience than today's media do. Their reporting may have been bad in other ways.

I wonder whether these transformations in the press will affect "free press" jurisprudence in any way, particularly in matters of press privilege, confidentiality and perhaps libel.

[Christopher Greene]

While I agree with much of what you wrote, I'd like to offer a minor qualification. His point, I think, was about her lack of experience with commercial transactional work. Of course, to make his argument work he has to first identify those qualities or areas of expertise that commercial litigators lack and transactional attorneys have and then explain why those factors are relevant to being a good Supreme Court justice. He gestures towards knowing the difference between secured and unsecured debt, but it seems to me that someone who has done high level commercial litigation (and has sat on the Second Circuit for some time) is probably familiar with such distinctions.

While Frum himself doesn't make any reference to actual advantages a transactional attorney would have over a commercial litigator for the job, does anyone think that the experience is especially meaningful for the position? I myself am agnostic as I know far too little about either field.