Sotomayor's courtroom manner a confirmation issue
AP News
Saturday, June 06, 2009
Sonia Sotomayor was in her 30s and not yet a judge when she noticed that a paralegal at the law firm where she worked broke out in hives whenever she entered Sotomayor's office. After six months, they laughed about it.
"'I don't know what was wrong with me, but it took me six months to realize that you don't bite,'" Sotomayor recalled the paralegal telling her.
"But her reaction was not uncommon and it is unfortunately the reaction of many people who don't get to know me immediately in a social setting. But they can get over it, fortunately," Sotomayor acknowledged.
The encounter offered clues to the complex temperament of the Supreme Court justice-in-waiting.
Smiling lawmakers who meet with Sotomayor and will vote on her Supreme Court nomination see the smiling, engaging and charming judge, someone quite different from the person several lawyers anonymously criticized in the Almanac of the Federal Judiciary as sometimes abrupt and even abusive.
In a 1998 interview with The Associated Press, Sotomayor acknowledged her personality can intimidate those who misunderstand her.
"When I'm working in particular, I'm extraordinarily focused and people get intimidated by that focus and intensity I bring to the interaction," she said. "And it takes people a little bit of time to realize that I'm not forbidding, that I actually am fun-loving, very open and very human."
Sen. Lindsey Graham, R-S.C., told reporters in Washington this past week that he wants to know "is this temperament problem overstated, overblown or is it fundamental to who she is?"
Sotomayor's intensity has been on display for the decade she has sat on the 2nd U.S. Circuit Court of Appeals in Manhattan, where she would often lean forward and stare at the lawyer she was questioning.
If the lawyer evaded her question or gave a weak response, she would repeat the question and push for clarity, sometimes to the point of sounding exasperated. But her tone was not belligerent and appeared directed at getting an answer.
Long before Sotomayor was elevated to the appeals court in 1998, the 2nd Circuit was regarded as a "hot bench" because its judges frequently interrupt lawyers with a volley of questions, sometimes letting them say only a few sentences of their prepared remarks.
Sotomayor was one of the more aggressive judges on the three-judge panels that rotate throughout the year.
She bluntly swept aside arguments by a government lawyer in December who tried to support his reasoning by noting that at least four judges had found it proper to toss out a lawsuit brought by a Canadian man who said the United States sent him to Syria to be tortured.
"But that doesn't mean they're right, counsel. Let's go back to my question," she told the government lawyer.
Fellow 2nd Circuit Judge Guido Calabresi, a former Yale Law School dean who taught Sotomayor when she was a student there, said Sotomayor "questions fiercely."
"Good lawyers love it when you say, `Here's my problem, now answer it,'" Calabresi said. "A bad lawyer goes into a panic."
Judge Jon Newman, another 2nd Circuit colleague, described Sotomayor as a "vigorous participant" in the courtroom, not much different from "a dozen outstanding judges I can name."
"Like many of us, she is engaged in the questioning," Newman said. "We regard oral argument as an important opportunity to engage counsel and probe the issues. She does it with skill and balance and she comes to the bench thoroughly prepared."
Several lawyers who have argued before her say they pity the lawyer who is unprepared.
"You better be prepared when you go in front of her. You can't just walk in and wing it," said lawyer Robert D. Arenstein.
Jacob Buckdahl, a commercial litigation lawyer in private practice who argued before Sotomayor when he was a federal prosecutor, said he likes Sotomayor's approach.
"I always appreciate as a litigant getting a hot bench and more challenging questions than when a panel sits there stone-faced," he said. "When a judge asks you questions, you know what's important to that judge and can tailor your argument to what matters to that judge."
Lawyer Floyd Abrams, a widely recognized First Amendment authority, recalled some challenging exchanges with Sotomayor. "One case she was very tough on me and she was asking hard questions and I didn't persuade her. You can't win them all," he said.
In another case, Abrams said Sotomayor engaged him in a "lengthy and vigorous" exchange over whether the press had an absolute right to information disclosed publicly in court.
Alan Milstein, who represented former Ohio State running back Maurice Clarett in his effort to enter the National Football League draft as a 19-year-old, remembered "very tough, very tough" questioning by Sotomayer. The appeals court overturned a lower-court judge who was going to let Clarett be drafted.
"It was obvious to me that she and the other panel members had made up their minds about this issue without looking at the briefs or even hearing the arguments," Milstein said. "I don't think she wanted to hear anything I had to say."
Milstein described the appeals court's decision as a heartbreaking denial of opportunity for his client to escape the poor, gang-infested community where he grew up. Still, Milstein said he believes Sotomayor "will make a great justice."
Rep. Nydia M. Velazquez, D-N.Y., a friend of Sotomayor and a fellow Puerto Rican, said Sotomayor's gender may be clouding the views of some critics.
"She has the responsibility as a judge to question and to challenge. If it's a man, that is `tough' _ it's OK _ if it's a woman then somehow she is a bully or has a bad tamper," Velazquez said.
http://townhall.com/news/politics-elections/2009/06/06/sotomayors_courtroom_manner_a_confirmation_issue
