Sotomayor's take-no-guff demeanor could alter court dynamics

McClatchy NewspapersMay 27, 2009 

WASHINGTON — Judge Sonia Sotomayor can be blunt, aggressive and impatient. So get ready for another public debate, and probably some insinuations, about her judicial temperament.

Twenty-two years ago, Robert Bork's Supreme Court nomination foundered in part over similar questions. Sotomayor's nomination resurrects the phrase but now it's packed with different meaning.

"It's her style," said New York-based lawyer Julia Heit, who counts herself among Sotomayor's fans and who's practiced in Sotomayor's 2nd U.S. Circuit Court of Appeals for three decades. "She wants answers. She wants the attorneys who appear before her to be prepared. And she's demanding, as she well should be.

"As an aside, I should say life will be easier when I don't have to confront her."

White House officials consider Sotomayor's take-no-guff temperament a sign that she can hold her own among the Supreme Court's aggressively conservative justices, starting with Antonin Scalia. They also know, however, that too much feistiness can undercut coalition building. Quietly, they surveyed Sotomayor's appellate court colleagues about her temperament, among other things.

With Bork, said David Yalof, a University of Connecticut associate professor, judicial temperament "was a proxy" for doubts about Bork's ability to empathize with the poor and underprivileged. With Sotomayor, by contrast, critics suggest that it's the actual temper that's the issue.

Jeffrey Rosen, a George Washington University law professor, first broadcast the complaints about Sotomayor in a widely circulated New Republic article, based largely on anonymous comments from law clerks and lawyers. Rosen's criticisms tracked lawyers' comments compiled in the nonpartisan Almanac of the Federal Judiciary, which is a kind of Fodor's guide to judges.

Sotomayor earned considerable praise among the lawyers quoted in the almanac. However, she also elicited critiques that range from "she can be a terror on the bench" and "she is temperamental and excitable" to "she can be a bit of a bully" and "she can get harsh at oral argument."

All told, her temperament drew a dozen highly critical comments. Another appellate judge who was considered for the Supreme Court opening, Diane Wood of the Chicago-based 7th U.S. Circuit Court of Appeals, has uniformly positive almanac reviews concerning judicial temperament.

Sotomayor's colleague and former Yale Law School professor, Judge Guido Calabresi, became aware of the anonymous sniping after she joined him on the 2nd Circuit in 1998. He eventually concluded that the complaints reflected sexism among male attorneys.

"They didn't like the idea of a woman being as strong as her male colleagues," Calabresi said in an interview.

He further characterized Sotomayor as a "wonderful colleague" who doesn't mince words. He said she had "in a not insignificant number of cases changed my mind . . . both by charm, but mainly by the force of her legal argument."

The forcefulness — or fearlessness — showed even before Sotomayor graduated from law school. While she was at Yale in the late 1970s, The Washington Post reported at the time, she filed a discrimination complaint against a Washington law firm after a partner asked her questions that she considered objectionable.

The law firm subsequently apologized, twice, for the questions, which included asking Sotomayor whether she thought she would have been accepted to Yale Law School if she weren't Puerto Rican.

Heit said she didn't buy the idea that Sotomayor was criticized periodically now because she was a woman, but neither does she consider the judge's questioning to be bullying. Straight talk, she said, comes with the appellate territory.

"You are well over your time, so let's wrap this," Sotomayor told one federal prosecutor in a February 2008 oral argument.

Earlier, Sotomayor had bluntly confronted the attorney for the We the People Foundation, chastising him for advocating a particular legal view "even though you know, even though you know, that every court has taken a contrary position to your own."

Efrem Fischer, as a New York assistant attorney general, lost a case before Sotomayor. Nonetheless, he said he had no complaints about her temperament. Fischer, a Republican who's now in private practice, praised her as "one of the most prepared jurists I've ever argued before on every level."

Henry Mazurek, a defense attorney who's argued cases before Sotomayor, added that he thought the criticism about her temperament most likely came from prosecutors who were unaccustomed to being held to task.

"She ran a tight court," Mazurek said, "and that can result in some lawyers saying that she has a difficult temperament."

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