Rosen Fires Back

Jeff Rosen has just returned from overseas to discover that the blogosphere responded critically to his TNR piece on Judge Sotomayor. (Apparently he was in the part of London that does not have internet connectivity!) He has now fired off a reply. He begins by blaming his editors for picking a misleading title for his piece, which is at least a little odd because little of the criticism was directed at the title. He then defends his anonymous sourcing, to which I did not object but others did. He also provides some evidence raising questions about Judge Sotomayor's judicial temperment and tentatively pronounces her opinions good but not great. Eventually he comes to the footnote question, which, I'll admit, is hardly momentous for either Rosen or Judge Sotomayor. He says:

Indeed, the footnote is hardly a model of clarity-and I can see why readers might not come to the same conclusion I reached. But the careful observers of the Second Circuit I talked to, who were familiar with the case, said Winter was widely assumed to be making an effort to be polite, avoiding direct criticism of his colleague while trying to distinguish Sotomayor's holding in Samaria from some loosely written dicta. In their view, Sotomayor's dicta in Samaria could indeed be read to call the earlier cases into question, just as the litigants suggested, and they believe Winter was trying to contain the damage to avoid embarrassing his colleague.

I think I'll call this an apology and declare victory. Recall that I floated the theory that the footnote by Judge Winter was not the real issue; the real issue was the underlying Samaria decision by Judge Sotomayor, but that Rosen misattributed the criticism to Judge Winter. I think his new explanation makes sense (with one exception) but it's not his original explanation. The original claim by Rosen was that Judge Winter wrote "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." In addition (now to the exception), Rosen's further effort to cast blame on others, this time Judge Winter, is strained. He says the footnote wasn't a "model of clarity." And yet, whatever Judge Winter's true feelings about the matter, the footnote quite clearly says the problem was with the lawyering. This is not "unusual" criticism of a colleague. It is a routine effort by one appeals court panel to distinguish what another appeals court panel said. I ask where the ambiguity in the following lies:

In a yet more recent case, an appellant has argued that Samaria stands 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. See United States v. Tropeano (Barroso), No. 00-1708 (2d Cir. Argued Feb. 26, 2001). Such a reading of Samaria 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. [Citations]. However, Samaria does not purport to address the validity of those cases in any way. Samaria's discussion of conscious avoidance related only to a sufficiency issue, and the panel thus made it clear that, on the evidence before it, the requisite level of intent could not have been found even on a conscious avoidance theory. See 239 F.3d at 239-42. The evidence in the present case, however, was that appellant had strong reason to suspect that the transaction was fraudulent but deliberately failed to pursue the issue. Because conscious avoidance goes only to prove Lancaster's knowledge, and not to show his intent to participate in the scheme, Samaria is therefore of no relevance.

Has Rosen committed some unpardonable offense? No, of course not, and this is all a tiny sideshow anyway. Still, it would be nice if Rosen were to own up to his initial sloppiness rather than dig in his heels and cast blame on others.

Posted by Mike Dorf