Friday, May 29, 2009
Lawyers tag nominee as ‘terror on the bench’
Tom LoBianco (Contact)
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.
The withering evaluation of Judge Sotomayor’s temperament stands in stark contrast to reviews of her peers on the 2nd U.S. Circuit Court of Appeals. Of the 21 judges evaluated, the same lawyers gave 18 positive to glowing reviews and two judges received mixed reviews. Judge Sotomayor was the only one to receive decidedly negative comments.
Judge Sotomayor’s demeanor on the bench will be one of the issues the Senate Judiciary Committee tackles when she appears for her confirmation hearing. A lack of a good temperament has been used as a line of attack against nominees in the past – most notably conservative Judge Robert H. Bork, whose nomination to the Supreme Court was defeated.
But several lawyers and legal scholars on a call organized by the White House said the criticism is misplaced and that Judge Sotomayor’s legal acumen is overwhelming.
“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.”
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Much of the public vetting of Judge Sotomayor, whom President Obama nominated to be the first Hispanic woman to sit on the nation’s highest court, has focused on her range of rulings on hot-button social issues.
Although the same lawyers who chastised her temperament gave her high marks on her legal abilities, Judge Sotomayor was the only member of the 2nd Circuit to receive a universally negative review of her temperament.
“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.”
The authors of the almanac interviewed at least eight lawyers who practice regularly before the judges and granted them anonymity so that they could provide candid assessments, said Megan Rosen, the editor of the almanac. The guide profiles every federal judge.
Ms. Rosen said that although Judge Sotomayor’s evaluations in the area of temperament were harsh, lawyers clearly respect her abilities – something not true of every judge reviewed in the almanac.
“Generally, when lawyers have respect for a judge it shows in all their other categories,” Ms. Rosen said. “If you know it’s just the general demeanor of the judge, it can help ease some of the tension that would otherwise be there.”
The lawyer reviews cover the rulings, political leanings and legal abilities of the jurists. The almanac, published in November, said Judge Sotomayor writes good opinions, is liberal but careful to follow precedent and has good legal abilities.
“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.
People often mistake her intensity for aggression and anger, Judge Sotomayor told the Associated Press in 1998.
During a high-profile national security case heard by the 2nd Circuit Court of Appeals in December, Judge Sotomayor gave the attorney for a Canadian man who had been detained by U.S. forces little room to work.
Judge Sotomayor interrupted the lawyer, David Cole, numerous times about whether there was standing for a U.S. court to hear the case, before eventually explaining her aggressive questioning.
“That’s why I’m trying to figure out and untie your arguments a bit,” Judge Sotomayor told Mr. Cole.
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.”
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.
MORE ON JUDGE SOTOMAYOR:
• Obama names first Hispanic to high court
• Sotomayor battled bias in D.C.
• Sotomayor would be court’s 6th Catholic
• Sotomayor deflected Republicans before
• Sotomayor reversed 60% by high court
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.
Judge Sotomayor said she probably should not have used the word “abomination” to describe the guidelines, but that her record showed she didn’t let her personal opinions affect her rulings.
“I do what the law requires, and I think that is the greatest respect I could show for it,” she told Mr. Sessions.
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.”
Conservative activists have decided on attacking Judge Sotomayor as a judicial activist who would work outside the rule of law. The Judicial Confirmation Network, which is leading a coalition of conservative groups, is airing an ad featuring Judge Sotomayor talking about whether judges set policy from the bench.