The White House is fond of pointing out that U.S. Supreme Court nominee Sonia Sotomayor has more years on the bench, as a trial court and appellate judge, than any previous Supreme Court nominee.
With that record comes not just hundreds of written opinions, but thousands of oral arguments. And some lawyers have characterized Judge Sotomayor's style as blunt, even bullying.
The Almanac of the Federal Judiciary publishes lawyers' evaluations of each federal judge, and updates those evaluations every few years. In Sotomayor's years on the bench, lawyers have often raved about her, calling her brilliant, tireless — just the absolute best. They have also called her tough and unwilling to put up with guff.
But in the most recent evaluation, interviews with eight to 10 unnamed lawyers also produced some less flattering comments: "a terror on the bench," "nasty," "overly aggressive," "a bit of a bully."
The subject of the Supreme Court nominee's judicial temperament has so far been raised by just one senator, Lindsay Graham (R-SC).
"There's a character problem; there's a temperament problem," says Graham.
Referring to the comments in the Almanac, Graham went on:
"I just don't like bully judges," Graham says. "There are some judges that have an edge, that do not wear the robe well. I don't like that. From what I can tell of her temperament and demeanor, she seems to be a very nice person. [Supreme Court Justice Antonin] Scalia is no shrinking violet. He's tough, but there's a difference between being tough and a bully."
Sotomayor's fellow judges view her as always prepared — and tough. Republican and Democratic appointees interviewed for this story rejected outright the notion that she is a bully, though some think she talks too much and too often dominates an oral argument.
Judge Guido Calabresi, former Yale Law School dean and Sotomayor's mentor, now says that when Sotomayor first joined the Court of Appeals, he began hearing rumors that she was overly aggressive, and he started keeping track, comparing the substance and tone of her questions with those of his male colleagues and his own questions.
"And I must say I found no difference at all. So I concluded that all that was going on was that there were some male lawyers who couldn't stand being questioned toughly by a woman," Calabresi says. "It was sexism in its most obvious form."
And what if such criticism came from a woman lawyer? Well, says Calabresi, women can be just as sexist as men in their expectations of how a woman judge should act.
To get a better idea of how Sotomayor operates, we listened to two tape-recorded oral arguments in important cases.
One was a recent argument in a case involving a Canadian citizen detained when he was changing planes in New York and then, without any court hearing, was sent to Syria where he was imprisoned for a year and tortured. The Canadian government has now apologized for its role in the matter and paid damages to the man. But the Bush administration refused to apologize and fought a lawsuit.
Last December, the case came before the full U.S. Court of Appeals for the 2nd Circuit — 13 judges — in New York.
Sotomayor asked tough questions of the lawyers for both sides. But so did her colleagues. For example, she asked five questions of the government lawyer, and her colleagues asked 61 questions. She interrupted the government lawyer seven times, while other judges interrupted him 66 times.
Sotomayor, however, was not in the courtroom. She participated by teleconference, and it was clear she sometimes interrupted because she could not hear.
Even from afar, though, Sotomayor was direct, to say the least. For example, in an exchange with government lawyer Jonathan Cohen, she asked him a skeptical question about the government position.
"So the minute the executive raises the specter of foreign policy, national security, it is the government's position that that is a license to torture anyone without any financial consequence?" she asked sternly.
"No, that is not our position. That is emphatically not our position," Cohen replied. "Our point here simply, your honor, is not that this court must stay out of this issue completely but rather should stay its hand and wait for Congress to create a cause of action."
In another case, currently on appeal to the U.S. Supreme Court, Judge Sotomayor was one of three judges considering whether the city of New Haven, Conn., could discard the results of a fire department promotion exam because no African-American ranked high enough to be promoted. Under federal law, an employer can be held liable even for unintentional discrimination if the employer uses a test that disproportionately excludes minorities. At oral argument, Judge Sotomayor was the dominant questioner, and she gave both sides a hard time.
She pressed the lawyer representing the white firefighters this way:
"We're not asking that unqualified people be hired — the city's not suggesting that. But if your test is going to always put a certain group at the bottom of the pass rate so they're never, ever going to be promoted, and there is a fair test that can be devised, then why shouldn't the city have an opportunity to try to look and see if it can develop that?"
Conversely, in questioning the city's lawyer, Sotomayor repeatedly asked what was wrong with the test that was given and whether any valid alternatives exist.
"What they're saying is ... you shouldn't permit race to be the driving force," Sotomayor said. "You have to look at the test and determine if the test was fair or not. And if you're going to say it's unfair, point to specifics of ways it wasn't and make sure there really are alternatives."
Yes, these are tough questions, but are they mean, unduly snotty or abusive? No more so than the questions heard on a routine basis in the U.S. Supreme Court.
For example, Chief Justice John Roberts questioned the government's lawyer last month about the constitutionality of the Voting Rights Act, which requires areas that have a history of racial discrimination in voting to get advance approval from the Justice Department before voting procedures can be changed.
"Then your answer is that Congress can impose this disparate treatment forever because of the history of the South?"
"Absolutely not," replied the government's attorney.
"When do they have to stop?" asked Roberts.
"Well, Congress here said ... 25 years was the appropriate reauthorization period," said the attorney.
"Well, they said five years originally and then another 20 years. I mean, at some point it begins to look like the idea is that this is going on forever," Roberts said.
And Justice Scalia disparaged the near unanimity in Congress in reauthorizing the law:
"Do you ever seriously expect Congress to vote against a re-extension of the Voting Rights Act? Do you really think that any incumbent would vote to do that?" Scalia said.
So, if Sotomayor sometimes dominates oral arguments at her court — if she is feisty, even pushy — then she would fit right in at the U.S. Supreme Court.