On Sotomayor and Temperament

The New Republic's Jeff Rosen was perhaps the first to raise the issue , however real, of Judge Sonia Sotomayor's temperament, in a story containing many blind quotes that was harshly criticized throughout the blogosphere (which we covered in Blowback In the SCOTUS Wars, Parts One and Two .)

The New York Times' Jo Becker and Adam Liptak recently raised some of the same issues about Sotomayor's temperament , writing, that to supporters her vigorous questioning "showcases some of her strengths. She is known as a formidably intelligent judge with a prodigious memory who meticulously prepares for oral arguments and is not shy about grilling the lawyers who appear before her to ensure that she fully understands their arguments. But to detractors, Judge Sotomayor’s sharp-tongued and occasionally combative manner — some lawyers have described 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 that Mr. Obama carefully considered before selecting her."

Former Yale Law School dean Judge Guido Calabresi says "some lawyers just don’t like to be questioned by a woman. It was sexist, plain and simple.”

At a background briefing last Tuesday with senior administration officials, I asked about criticisms of Sotomayor's temperament.

Clearly prepared for the question, White House press secretary Robert Gibbs pointedly -- and jokingly -- asked, "Jake, would you say the tough questions generally went to a criticism of one's temperament?"

As the other reporters in the room laughed, another senior administration official added, "for the record, Jake was not on the list."

More seriously, another senior administration official said, "in the course of reviewing candidates for the Supreme Court, we talked to virtually all her colleagues on the Court of Appeals, a number of her colleagues on the District Court, lawyers who had practiced before her; we read transcripts of counsel oral arguments. And the overwhelming consensus of that was that she is an active questioner from the bench. She has what people call 'hot' court -- as you come in there you're going to get a lot of questions. And she is tough on lawyers who come to her courtroom unprepared.

"And when we talked to Judge Sotomayor about that she was unapologetic for that, as she should be. I think there is, however, nothing to suggest that her temperament should be questioned or that her conduct as judge is anything other than that which it should be -- which is someone who comes to her courtroom every day prepared for the arguments, ready to ask counsel questions, testing legal theories by asking questions, and understanding the cases extremely well."

Added another: "And just needless to say -- you've got students of the Supreme Court here -- it is not a place for shrinking violets; it is not a place that is languid in its pace. So the fact that she has these qualities certainly wasn't a disqualifying factor."

Asked about Sotomayor's collegiality, this official said "the reviews from her colleagues on the court were extremely strong. And the fact of the matter is in cases where she sat with a Republican appointee, they agreed in 95 percent of the cases. And when we talked to her about that, we talked to her Republican-appointed colleagues about that, what we found was just a very strong sense that this is someone who works very effectively with her colleagues, who often can bring votes over to her cause. And I think she will be very effective on the Court."

- jpt

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