Justice Alito and Judge Sotomayor — the lawyers’ take

Earlier today, I posted the “lawyers’ evaluation” of Judge Sotomayor that appears in the Almanac of the Federal Judiciary. The evaluation, based on interviews with lawyers who have appeared before Sotomayor, was favorable on the whole, but hardly glowing.

To see what a glowing evaluation looks like, check out the lawyers’ evaluation of Samuel Alito at the time he was nominated for the Supreme Court. (Like Sotomayor, Alito was a federal court of appeals judge then):

Lawyers interviewed praised Alito’s legal acumen. “He is exceptional.” “He has brilliant ability.” “He is even more exceptional than Becker. He is a brilliant jurist.” “To say he is outstanding is to use understatement. He’s the best judge on the circuit, maybe the country.” “His ability is very, very, very good. Very seriously, he’s very bright.” “He’s pretty good in terms of making a coherent argument.” “He is very smart.” “He is brilliant and of unquestioned intelligence.” “He has adequate legal ability. He doesn’t say much and is harder to read.”

Alito is measured and judicial on the bench, according to lawyers. “He has a fine, nice demeanor–he couldn’t have keener demeanor.” “He is demanding, but always courteous. He may occasionally demonstrate a little bit of impatience with lawyers that aren’t quite getting it–this can be directed at either side; it’s just a sign that his mind is working more efficiently than yours. He is never dis-courteous and never abusive.” “He has an excellent demeanor–very measured.” “He is somewhat reserved. He’s not hostile, negative or mean. He is pleasant and courte-ous.” “He is extremely polite and genteel.” “I do not have much of a sense of him as a person. He looks bored at times.”

Alito is normally a moderately active panelist during oral argument, said attorneys. “He is fairly active and asks penetrating questions. Questions can be factual or hypothetical in nature.” “He is active. He asks intricate questions, both factual and legal. His legal questions often grasp upon the intricacies of the law that you haven’t grasped; it’s often in your favor.” “He asks very incisive questions that can be factual or legal, depending on case. He is moderately active and always in control, but always polite to counsel.” “He doesn’t always ask questions, but when he thinks a case merits reversal, he is very active. He is prone to asking questions only when he sees a problem with what the district court did. I’ve seen him ask whole series of hypotheticals, but he normally focuses on the particular issues of the case.” “He did not ask many questions, but those he did were thoughtful questions. He had clearly read the stuff that was submitted and knew what was going on.” “He asks questions that are very pointed; get right to the heart of an issue. He’s active.” “He’s quiet and not particularly active. He will generally have one or two concerns that he’ll address.”

Lawyers indicated that Alito has a very conservative outlook. “He is conservative.” “He is conservative.” “He is conservative.” “He is conservative, but reaches honest decisions as he sees them. There is a conservative bent to his thinking.” “He’s conservative.” “He has the reputation of being conservative.” “By reputation, he is known to be one of the more conservative judges on the court, but he is forthright and fair. He tries to decide the cases in front of him in the right way.” “He is strongly conservative.” “He is conservative and on the far right wing of the court, but he is a truly decent person who believes in his heart that he is doing the right thing.”

Attorneys remarked that Alito has exceptional writing ability and authors succinct, but thorough opinions. “His opinions are very detailed, analytical and thorough. His judgment is quite considered.” “He is pretty good in terms of his writing.” “His opinions are very well written. They are not as chatty as Becker’s opinions, but are very thorough.” “His opinions are extremely well written. There is a lot of depth. He focuses on the true issues in the case without waste.” “His opinions are brilliant. They are concise, very incisive opinions.” “His opinions are concise and well reasoned.” “He writes short, result-oriented opinions.” “His opinions are very, very conservative. He’s very ideological and carefully writes his opinions to set up the next– he plants language that moves the law further to the right. He is dogmatically conservative. His opinions are succinct, but still scholarly.”

Here again, for your reference, is Sotomayor’s:

Most lawyers interviewed said Sotomayor has good legal ability. “She is very good. She is bright.” “She is a good judge.” “She is very smart.” “She is frighteningly smart. She is intellectually tough.” “She is very intelligent.” “She is a good judge, but not quite as smart as she thinks she is.” “She has a very good commonsense approach to the law.” “She looks at the practical issues.” “She is good. She is an exceptional judge overall.” “She is smart. She is not as intellectual as some.” “It is fair to say she has done better than many people predicted. I’d say she is in the bottom of this court –but, the competition is pretty stiff.” “She is one of the few civil rights lawyers to be appointed to the court. Sometimes I think she is at war with herself. In her heart I think she still thinks from the bottom up.

When you argue before her you have the sense that she is waiting for you to give her a reason to win. If you don’t give it, she will rule against you.” “I am not too impressed with her. She is bright, but doesn’t always get the facts.”

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.”

Lawyers said Sotomayor is very active and well-prepared at oral argument. “She is engaged in oral argument. She is well-prepared.” “She participates actively in oral argument. She is extremely hard working and always prepared.” “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.”

Most lawyers interviewed said Sotomayor is liberal. “She is liberal.” “She is broadly inclined in a more liberal direction, but is very careful to follow precedent.” “She tends to be liberal.” “She is on the more liberal side of things.” “She is quite liberal.” “She is not necessarily pro-government.” “She is not a government pushover. She is fair.” “She is trying to move to the right.” “She has no discernible leaning.”

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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