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May 29, 2009

Sotomayor’s Sharp Tongue Raises Issue of Temperament



WASHINGTON — Judge Sonia Sotomayor, President Obama’s Supreme Court nominee, has a blunt and even testy side, and it was on display in December at an argument before the full federal appeals court in New York. The case concerned a Canadian man who said American officials had sent him to Syria to be tortured, and Judge Sotomayor peppered a government lawyer with skeptical questions.

“So the minute the executive raises the specter of foreign policy, national security,” Judge Sotomayor asked the lawyer, Jonathan F. Cohn, “it is the government’s position that that is a license to torture anyone?”

Mr. Cohn managed to get out two and a half words: “No, your hon — .”

Judge Sotomayor cut him off, then hit him with two more questions and a flat declaration of what she said was his position. The lawyer managed to say she was wrong, but could not clarify the point until the chief judge stepped in.

 

“Why don’t we just get the position?” he asked.

To supporters, Ms. Sotomayor’s vigorous questioning of the Bush administration’s position in the Arar case showcases one of her strengths: She is known as a formidably intelligent judge with a prodigious memory who meticulously prepares for oral arguments and isn’t shy about grilling the attorneys who appear before her to ensure she fully understands their arguments.

But to detractors, Ms. Sotomayer’s sharp-tongued and occasionally combative manner — some lawyers describe her as “difficult” and “nasty” — raises questions about her judicial temperament and willingness to listen. Her demeanor on the bench is an issue that conservatives opposed to her nomination see as a potential vulnerability — and one President Obama himself carefully considered before selecting her.

Judge Sotomayor’s colleagues on the United States Court of Appeals for the Second Circuit say her tough and direct questioning reflect engagement and, sometimes, an attempt to persuade her colleagues. Those same qualities, coupled with a gregarious personality, they said, make her a powerful force behind the scenes, where she has used her mastery of the cases to change minds, improve opinions and forge consensus.

Those skills, say some observers, could make her an able politician on the Supreme Court and allow her to serve as an intellectual counterweight to conservative Justice Antonin Scalia, who is known for his acerbic questioning.

“In some ways she could match, well, the other New Yorker on the court, Justice Scalia,” saidDouglas Kmiec, a law professor at Pepperdine University. “He expects people to give back as good as he gives, and I expect that when Justice Sotomayor is on the court, his wish will be fulfilled.”

Both collegues and lawyers who have argued before her agree that her style is assertive.

“They call it a hot bench when a judge asks a lawyer a lot of questions—well, she isn’t afraid of running a hot bench,” said H. Raymond Fasano, a Republican immigration lawyer who has appeared before her 24 times, mostly on asylum cases, and is a fan. “When a judge asks a lot of questions, that means she’s read the record, she knows the issues and she has concerns that she wants resolved. And that’s the judge’s job.”

Other lawyers, though, are not so enamored. In the Almanac of the Federal Judiciary, which conducts anonymous interviews with lawyers to assess judges, she has gone from generally rave reviews to more tepid endorsements in recent years, with some lawyers saying that she is a “terror on the bench” who “behaves in an out of control manner” and attacks “lawyers for making an argument she doesn’t like.”

“I felt she could be very judgmental in the sense that she doesn’t let you finish your argument before she jumps in and starts asking questions,” said Sheema Chaudhry, who appeared before Judge Sotomayor on an asylum case last year. “She’s brilliant and she’s qualified, but I just feel that she can be very, how do you say, temperamental.”

Gerald Lefcourt, a New York defense lawyer, has dealt with Ms. Sotomayer when she was an assistant district attorney, a federal district court judge and on the Second Circuit. He said she was “more strident and much more vocal” than some of her colleagues in his most appearance before her, involving an appeal of a securities fraud conviction, adding that “she used her questioning to make a point, as opposed to really looking for an answer to a question she did not understand.”

But Judge Guido Calabresi, a former dean of Yale Law School who taught Ms. Sotomayor there and now sits with her on the Second Circuit, said complaints that she had been unduly caustic have no basis. For a time, Judge Calabresi said, he kept track of the questions posed by Judge Sotomayor and other members of the 12-member??? court.

“Her behavior was identical,” he concluded. “Some lawyers just don’t like to be questioned by a woman,” he added. “It was sexist, plain and simple.”

Judge Calabresi said his colleague’s forceful and lucid arguments had persuaded him to reconsider his position in a number of instances. “And I’m a tough act,” he added.

Other colleagues said Judge Sotomayor frequently sends unusually detailed, closely reasoned and helpful memorandums critiqueing their draft opinions. “She will offer substantive suggestions but she will not be tenacious in making sure the language comes out exactly her way,” said Judge Jon O. Newman.

Professor Laurence H. Tribe, a Harvard law professor who served as an advisor in the selection process, said the White House had found concerns about Judge Sotomayor’s temperament unfounded, concluding instead that her background and concern with the consequences of the court’s rulings would be a “healthy antidote” to more formalist legal theories advocated by the Supreme Court’s conservative wing.

“The president’s inquiries into the way she interacts with others convinced him that she would be a positive force in the chemistry of the Supreme Court,” Professor Tribe said.

Judge Sotomayor’s outgoing demeanor presents a contrast that of the justice she hopes to replace, Justice David H. Souter, who is retiring in both senses of the word.

Judge Calabresi said Judge Sotomayor could quickly transform the atmosphere at the Supreme Court. “I would think she would try to make it a place where people got along more, talked to each other more,” he said.

Judge Richard C. Wesley, another colleague agreed. He said his interactions with Judge Sotomayor have been “totally antithetical to this perception that has gotten some traction that she is somehow confrontational.”

He said that in cases like the terrorism claims involving the Canadian man, Maher Arar, which is still pending, there are “tough and imporant issues” that need to be addressed, and that questioning can be intense.

“And sometimes, judges themselves get involved in the argument,” he said. “You press a bit and sometimes some of your colleagues may think you pressed too hard. But let’s be fair. I think there is a difference between tough questioning and demeaning questioning, and I haven’t seen that line crossed by any of my colleagues.”

Mr. Cohn, the government lawyer in the Arar case, said he was not taken aback by Judge Sotomayor’s volley of inquiries. “I thought her questions and demeanor were reasonable and fine,” he said.

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