Wash. Times article allows unnamed critics to smear Sotomayor as "terror on the bench"
Research ››› ››› MORGAN WEILAND & HANNAH DREIER
A Washington Times article reported criticisms of Sonia Sotomayor's judicial temperament, but none of those criticisms came from an on-the-record source who knew Sotomayor.
A May 29 Washington Times article about Supreme Court nominee Sonia Sotomayor's judicial temperament reported criticisms of her -- including that "[l]awyers who have argued cases before [her] call her 'nasty,' 'angry' and a 'terror on the bench' " -- but none of those criticisms came from an on-the-record source who knew Sotomayor. Indeed, the article identified the source of the "terror on the bench" quote that appeared in the headline and lead paragraph as the Almanac of the Federal Judiciary, which, as the article reported, is based on "interview[s] [with] at least eight lawyers who practice regularly before the judges and" to whom the AFJ "granted ... anonymity so that they could provide candid assessments."
The Times article included the following references to criticisms of Sotomayor's temperament:
- "Lawyers who have argued cases before Supreme Court nominee Sonia Sotomayor call her 'nasty,' 'angry' and a terror on the bench,' according to the current Almanac of the Federal Judiciary -- a kind of Zagat's guide to federal judges."
- " 'She really lacks judicial temperament. She behaves in an out-of-control manner. She makes inappropriate outbursts,' one lawyer told the almanac. Another said she 'abuses lawyers.' "
- "Legal scholar Jeffrey Rosen documented concerns from 2nd Circuit law clerks and New York prosecutors in a piece he wrote for the New Republic earlier this month. In the piece, he quoted anonymous members of the New York legal community who described Judge Sotomayor as an intellectual lightweight and 'kind of a bully on the bench.' " Media Matters for America has documented the problematic nature of Rosen's article.
- Sen. Jeff Sessions' (R-AL) comments to Sotomayor at her 1997 Senate confirmation hearing:
Judge Sotomayor's judicial temperament was raised during her 1997 confirmation hearing to the appeals court. Sen. Jeff Sessions, the Alabama Republican who recently became the ranking member of the Senate Judiciary Committee, told Judge Sotomayor that she was out of bounds when she criticized mandatory minimum sentences from the bench during one sentencing proceeding.
"I do think that a judge, would you not agree, has to be careful in conducting themselves in a way that reflects respect for the law and the system," Mr. Sessions said.
The Times article also contained the following defenses of Sotomayor's temperament:
- " 'She does not suffer fools gladly,' said Kevin Russell, a partner for Howe & Russell P.C. who argued a case before Judge Sotomayor about respiratory ailments suffered by the men and women who cleaned up ground zero after the Sept. 11 terrorist attacks. 'I guess it is predictable that some of those fools would then complain about it.' "
- " 'She is a direct and candid questioner,' said Thomas H. Dupree Jr., a former U.S. deputy assistant attorney general who has argued five cases before Judge Sotomayor since 2007."
- "On the White House-organized call, Judge Sotomayor's colleagues praised her careful reading of laws and characterized her as a judge bent on restraint and narrow readings of statutes. Lawyers on the call couched her aggressive questioning as a product of a 'hot bench' and poring over details meticulously."
- "Harvard law professor and Obama mentor Charles Ogletree said lawyers caught off guard by Judge Sotomayor's demeanor who criticize her are 'misconstruing her sense as a well-prepared judge, one who is not on a fishing expedition.' "
- "People often mistake her intensity for aggression and anger, Judge Sotomayor told the Associated Press in 1998."
In addition, legal scholars have challenged the credibility of the evaluations in the AFJ. American University law professor Darren Hutchinson wrote in a May 8 post to his Dissenting Justice blog that "AFJ lawyer comments can reflect racial and gender biases." As a case in point, he explained that the elements of judicial temperament that the AFJ reviewers considered to be negative for Sotomayor were treated far more positively in the AFJ's own evaluation of Justice Antonin Scalia:
Almanac of the Federal Judiciary: The "Tempermant" Issue
Most of the early reviews on Sotomayor concede that the summa cum laude Princeton and Yale Law School graduate is smart. The worst reviewers, however, say that she lacks judicial temperment [sic]. Rather than being firm, but flexible, detached but engaged, her detractors describe her as a firery [sic] Latina tempest waiting to knife and brutalize lawyers in the courtroom. A survey of lawyer comments from the AFJ report on Sotomayor confirms this view of Sotomayor among some lawyers:
Sotomayor can be tough on lawyers, according to those interviewed. "She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive -- not very judicial. She does not have a very good temperament." "She abuses lawyers." "She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like". . . .
"She dominates oral argument. She will cut you off and cross examine you." "She is active in oral argument. There are times when she asks questions to hear herself talk." "She can be a bit of a bully. She is an active questioner." "She asks questions to see you squirm. She is very active in oral argument. She takes over in oral argument, sometimes at the expense of her colleagues." "She can be very aggressive in her questioning." "She can get harsh in oral argument." "She can become exasperated in oral argument. You can see the impatience." "You need to be on top of it with her on your panel."
Compare the lawyer responses to Sotomayor with the AFJ comments on Justice Scalia -- whom many lawyers consider a tough questioner as well. While lawyers negatively describe Sotomayor's toughness, in Scalia, toughness receives praise, if not awe. Scalia's hazing of lawyers is just part of the understood fun among the brotherhood of lawyers. Although reviewers describe Scalia as tough, this does not make him a dangerous "out-of-control" she-judge. Notice the sporting and friendly hazing metaphors in the AFJ description of Scalia:
Never utter the words "legislative history." If you do, chances are Scalia will interject with a ridiculing harangue that makes it clear he views legislative history as poppycock. Legislative debates are often contrived and can't trump the actual words of the statute, Scalia insists. But even if you play it safe, you can expect tough, persistent questioning from Scalia, often delivered with an almost gleeful lust for the sport of jabbing and jousting with advocates before him. And Scalia is an equal-opportunity jouster; even when his position seems obvious, Scalia will be just as hard on the lawyer he agrees with as the lawyer he'll oppose. Ever the law professor, Scalia will sometimes ask questions with no clear relevance, just to see if you are on your toes. In a now-legendary exchange during arguments on a federal rule that barred the advertising of the alcohol content of beer, Scalia asked a lawyer for Coors to define the difference between beer and ale. The lawyer, the late Bruce Ennis, answered without missing a beat, to the amazement of justices and spectators alike, and Coors won the case. But Scalia can be nasty, as well. When a lawyer once paused too long before answering his question, Scalia said sharply, "You have four choices, counselor: "Yes," "No," "I don't know," or "I'm not telling." But the most important advice on how to sway Scalia at oral argument or in brief-writing is to buy his new book. ... [One] tip: Don't use the kitchen sink strategy of throwing at the Court every conceivable argument your legal team can think up. Pick your best three, at most, Scalia and Garner advise. "Arm-wrestle, if necessary, to see whose brainchild gets cut."
In Scalia, toughness is positive; in Sotomayor, it is nonjudicial. If Scalia asks irrelevant questions, he is just being a dutiful "law professor" trying to hold the attention of his class. If Sotomayor does the same thing, she is just interested in hearing herself talk. When Scalia duels harshly with litigants, the "spectators" watch in amazement. If Sotomayor asks tough questions, she is seen as difficult, temperamental, and excitable. The disparate treatment is too dense to deny.
Similarly, Scott A. Moss, an associate professor at the University of Colorado Law School, wrote in a May 26 Politico opinion piece, "The case against the case," that there is "gender bias" in the "anonymous criticisms of Judge Sotomayor" in the AFJ. After explaining that one "criticism of Sotomayor -- that she is an intemperate bully -- derives largely from a collection of anonymous quotations in the Almanac of the Federal Judiciary," Moss asserted:
[S]ome of the complaints struck me as suspiciously common attacks on outspoken, high-powered women. How many men are criticized for being "very outspoken"? Do Sotomayor's critics see it as a bad thing that Scalia frequently is "overly aggressive" on the bench and in his notoriously entertaining public speeches?
Any fair reading of evaluations, especially anonymous ones, takes into account this well-known gender bias, to avoid penalizing women for Type A traits that draw far less criticism, and even draw praise, in men.