Guy-Uriel E. Charles, Daniel L. Chen, and G. Mitu Gulati, all of Duke University's Law School, have posted a new paper, "'Not that Smart': Sonia Sotomayor and the Construction of Merit" at ssrn. Here is their abstract:
The appointment of Sonia Sotomayor to the Supreme Court in 2009 was criticized as sacrificing merit on the altar of identity politics. According to critics, Sotomayor was simply “not that smart”. For some conservative critics, her selection illustrated the costs of affirmative action policies, in that this particular choice was going to produce a lower quality Supreme Court. For liberal critics, many were concerned that the President, by selecting Sotomayor, was squandering an opportunity to appoint an intellectual counterweight to conservative justices like Antonin Scalia, Samuel Alito and John Roberts. Using a set of basic measures of judicial merit, such as publication and citation rates for the years 2004-06, when Sotomayor was on the Second Circuit Court of Appeals, we compare her performance to that of her colleagues on the federal appeals courts. Sotomayor matches up well. She might turn out to be more of a force on the Court than the naysayers predicted.
I have a couple of reactions when I first read a draft of this paper -- one was that I'm not entirely convinced that publication rates and number of published pages are so much measures of quality as measures of ego-centrism. (I would also imagine that length of opinions is strongly correlated with circuit -- I'd imagine that the DC Circuit opinions are, on average, much longer than, say, the Fourth Circuit. Of course the authors take circuit into account towards the end of the paper.) To put this point into the context of legal academics -- how much weight would we give to an evaluation of a faculty candidate based on the number of pages she produced? Maybe some, but I think we'd be a lot more concerned with an assessment of quality. My second reaction was that I really need to perform a thorough parallel study for some of my antebellum judges to see how their "reputations" travel.