Legal News

Is Sotomayor Overly Aggressive on the Bench or Just One of the Guys?

By Nathan Koppel

The Sotomayor confirmations had turned seriously plodding this afternoon until Lindsey Graham livened things up ever so slightly.

The South Carolina Republican (pictured left) told Judge Sonia Sotomayor that he liked her, and he maintained a winning smile throughout his questioning. But that didn't stop him from going on the attack when asking Sotomayor about criticisms of her temperament on the Second Circuit. In anonymous surveys, he said, attorneys had offered these comments: "She's a terror;" "she seems angry;" "she abuses lawyers," and on and on.

Sotomayor defended herself by saying that she asked tough questions of lawyers. Appellate lawyers, she said, are generally critical of the Second Circuit, because it is a hot bench, often drilling attorneys with questions even though they have only 10 minutes to make their case in oral arguments, she pointed out.

No, Graham replied. Lawyers "find you more difficult and challenging than your colleagues. …You stand out like a sore thumb in terms of your temperament."

The Democrats quickly responded to this line of attack with a statement titled "correcting the record," which included comments Justice Ruth Bader Ginsburg made to the New York Times (here) suggesting that male appellate judges are given more leeway than women to aggressively question lawyers. "Yes, the notion that Sonia is an aggressive questioner – what else is new," she told the Times. "Has anybody watched Scalia or Breyer up on the bench?"

Graham was also one of the few senators who appeared to learn anything of substance about Sotomayor's views. At one point, he seemed to illicit a suggestion from the judge that even though the Constitution does not expressly grant women the right to an abortion that, standing alone, does not give states the license to regulate abortion as much as they choose. Graham, however, treated this perhaps as more of a gotcha moment than it warranted, suggesting that Sotomayor clearly embraced the idea of the Constitution as a broad document that evolved with the times.

Sotomayor, however, told Graham that the "Constitution doesn't live except to be timeless."

Continuing on the abortion theme, Graham later asked Sotomayor about her 12-year tenure as a board member of the Puerto Rican Legal Defense Fund. The group, he noted, repeatedly argued in motions that impoverished women should get taxpayer assistance to get abortions. The judge said she was not familiar with those motions and that as a board member her primary responsibility was to raise money for the group.

Sotomayor, though, did once sign a brief by the Puerto Rican legal group in which it argued against the death penalty in New York on the grounds that it was used more against minorities.

Despite that, the judge said she defers to the Supreme Court precedent that the death penalty is constitutional.

LB Bonus: We also highly recommend this post on Sotomayor’s questioning about the Ricci case, found on WSJ’s Washington Wire, written by Supreme Court reporter Jess Bravin.

Photo: AP

Full post as published by Law Blog - WSJ.com on July 14, 2009 (boomark / email).