STEVE INSKEEP, host:
The White House often points out that Supreme Court nominee Sonia Sotomayor has more years on the bench as a trial and appellate judge than any previous Supreme Court nominee. With that comes a lot of written opinions and also thousands of oral arguments. Some lawyers have characterized Judge Sotomayor's style as blunt, even bullying.
NPR legal affairs correspondent Nina Totenberg takes a look at that.
NINA TOTENBERG: The Almanac of the Federal Judiciary publishes lawyer evaluations for each federal judge and updates those evaluations every few years. In Sonia Sotomayor's years on the bench, lawyers have raved about her, calling her brilliant, tireless — just the absolute best. They've called her tough and demanding.
But in the most recent evaluation, interviews with eight to ten unnamed lawyers also produced some less flattering comments: a terror on the bench, nasty, overly aggressive, a bit of a bully.
The subject of Sotomayor's judicial temperament has so far been raised by just one senator, South Carolina Republican, Lindsay Graham.
Senator LINDSAY GRAHAM (Republican, South Carolina): There's a character problem; there's a temperament problem.
TOTENBERG: Referring to the comments in the Almanac, Graham went on:
Sen. GRAHAM: I just don't like bully judges. But 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. Scalia is no shrinking violet. He's tough, but there's a difference between tough and a bully.
TOTENBERG: That last was a reference to Supreme Court Justice Antonin Scalia.
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's a bully, though some think she talks too much and too often dominates an oral argument.
Sotomayor's mentor, former Yale Law School dean, now Judge, Guido Calabresi, says when Sotomayor first joined the court, 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.
Judge GUIDO CALABRESI (Former Yale Law School Dean): And 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. It was sexism in its most obvious form.
TOTENBERG: And what if such criticism came from a woman lawyer? Well, said 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 transferring flights in New York and then, without any court hearing, 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 Court of Appeals — 13 judges — in New York. Sotomayor asked tough questions of the lawyers for both sides, but so did her colleagues. She, for example, 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. Here, for example, is an exchange with the government's lawyer, Jonathan Cohen, in which she asks him a skeptical question about the government position. You'll hear the chief judge, at one point, intervening to make sure Cohen can answer.
Judge SONIA SOTOMAYOR (Supreme Court Nominee): 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?
Mr. JONATHAN COHEN (Attorney): No, that is not our position. That emphatically is not our position, your honor. We're saying this…
Ms. SOTOMAYOR: (unintelligible)
Unidentified Man (Chief Judge): Why don't we just get the position.
Mr. COHEN: 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 the cause of action.
TOTENBERG: 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, Connecticut, 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 for the white firefighters this way:
Ms. SOTOMAYOR: We're not suggesting 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 could be devised, then why shouldn't the city have an opportunity to try to look and see if it can develop that?
TOTENBERG: 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.
Ms. SOTOMAYOR: What they're saying is, you shouldn't permit race to be the driving force. You have to look at the test and determine whether the test was in fact fair or not. And if you're going to say it's unfair, point to specifics of ways it wasn't and make sure that there really are alternatives.
TOTENBERG: Yes, these are tough questions, but are they mean, unduly snotty or abusive? No more so than questions heard on a routine basis at the U.S. Supreme Court.
Here, for example, is Chief Justice John Roberts questioning 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.
Chief Justice JOHN ROBERTS (U.S. Supreme Court): Then your answer is that Congress can impose this disparate treatment forever because of the history of the South?
Unidentified Man (Attorney): Absolutely not.
Mr. ROBERTS: When do they have to stop?
Unidentified Man: Well, Congress here said 25 years is the appropriate reauthorization period just…
Mr. ROBERTS: 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.
TOTENBERG: And here is Justice Scalia at the same argument, disparaging the near Congress unanimity in reauthorizing the law:
Justice ANTONIN SCALIA (U.S. Supreme Court): 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?
TOTENBERG: So, if Sonia Sotomayor sometimes dominates oral arguments at her court — if she is feisty, even pushy — then she should fit right in at the U.S. Supreme Court.
Nina Totenberg, NPR News, Washington.
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