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Another Profile of Judge Sonia Sotomayor…and Some Controversy

May 26, 2009

From the New Republic, a recent story about presumed Supreme Court nominee Circuit Court Judge Sonia Sotomayor written by Jeffrey Rosen. According to Rosen, there is some concern about her judicial temperament and, uh, analytical acuity:

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.”

Rosen’s piece created a whirlwind of controversy when it was published on May 4th. There was so much criticism–that his sources were too removed from Judge Sotomayor and that there was too much rumor and innuendo being passed off as insight–that Rosen wrote a second and more comprehensive column buttressing the arguments he made in the first. Below is his attempt to support the accusation that Judge Sotomayor has an aggressive legal temperament and is not the intellectual giant that many on the left are hoping for as a bulwark against the Conservative majority on the bench:

I was satisfied that my sources’s concerns were widely shared when I read Sotomayor’s entry in the Almanac of the Federal Judiciary, which includes the rating of judges based on the collective opinions of the lawyers who work with them. Usually lawyers provide fairly positive comments. That’s what makes the discussion of Sotomayor’s temperament so striking. Here it is:

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.”

Not all of Sotomayor’s lawyers’ evaluations in other areas were this negative. As the Almanac puts it “most of lawyers interviewed said Sotomayor has good legal ability,” and “lawyers said Sotomayor is very active and well-prepared at oral argument.” I acknowledged both of these views in the piece.

Some readers have also questioned my confession at the end of the piece that I hadn’t read enough of her opinions to make a fully confident judgment. Perhaps I conceded too much: I had read enough of her opinions to find them good but not great–like much of the competent but not especially distinctive writing that characterizes most federal appellate opinions. In the past few days, I’ve read many more opinions, and nothing has called my initial judgment into question. For what it’s worth, that judgment is consistent with that of the lawyers in the Federal Almanac:

Lawyers interviewed said Sotomayor writes good opinions. “Her opinions are O.K, by and large.” “She writes very clear and careful prose in her opinions.” “Her writing is good.” “Her opinions are generally well-reasoned and well-argued.” “She writes well.” “She is a very good writer.” “Her writing is not distinguished, but is perfectly competent.”

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