The testiness test

The New York Times marches up the hill and down again in this story about Judge Sotomayor’s “blunt style” and “judicial temperament.” The story begins with an anecdote about an attorney who was questioned so furiously at oral argument by Sotomayor that he was unable for a while to get a word in. “To her detractors,” the Times says, “Judge Sotomayor’s sharp-tongued and occasionally combative manner — some lawyers have described her as “difficult” and “nasty” — raises questions about her judicial temperament and willingness to listen.”

The Times comes down squarely on the side of her defenders, enlisting several in her defense. The article climaxes with the very lawyer who couldn’t get a word in saying, “”I thought her questions and demeanor were reasonable and fine.”

The Times need not have bothered with this hill. Aggressive questioning of advocates at oral argument is hardly a vice; often it is a plus. Naturally it’s better for judges not to get testy with the lawyers, and certainly the lawyers should be permitted to answer. But judges are human and come with varying demeanors. This variation is evident, for example, on the current Supreme Court.

Nothing I have read about Sotomayor’s demeanor and questioning at oral argument remotely suggests that this set of concerns makes her an objectionable nominee. There really shouldn’t be a “niceness” test for judges and Justices, and judicial temperament in an appellate judge should be measured almost exclusively by what the judge writes in opinions, not by how he or she questions from the bench.

JOHN adds: For those who aren’t aware, Paul is a top-notch appellate lawyer and speaks here from many years of experience.


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