http://www.freerepublic.com/focus/news/2285168/posts?page=13#13
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Posted on 07/18/2009 10:48:41 AM PDT by kellynla
Sen. Lindsey Graham read off some of the terms lawyers used to describe Judge Sonia Sotomayor: “A terror,” “angry,” “aggressive,” and “a bully.”
“You stand out like a sore thumb in terms of your temperament,” Graham told Sotomayor at her Supreme Court confirmation hearings this week.
“I do ask tough questions at oral arguments,” Sotomayor replied. “And some lawyers do find that our court, which is not just me, but our court generally, is described as a ‘hot bench.’ ”
But what is a “hot bench” anyway? And how hot was it? The task of disentangling tough from obnoxious, probing from abusive is a very subjective one – even, evidently, for the seasoned litigators (no fainting violets they) who make the bulk of the appearances in the Second Circuit’s shiny, secure new courthouse in lower Manhattan.
The Second Circuit recently provided audio recordings of oral arguments — some of which have never been published — from four of Sotomayor’s better-known cases, and snippets of a fifth, in response to a request from POLITICO, and the exchanges themselves – far better than any written impressions – offer a glimpse of her style as an appellate judge, and the Supreme Court Justice she’s likely to be.
The tapes reveal a blunt judge who talks as much or more than her (often equally combative) colleagues; who makes no bones about interrupting or even, in one case, laughing at lawyers; and who goes to no great length to disguise her quarrel with an argument or her point of view.
But they also give no indication that Sotomayor is reluctant to tangle with lawyers who arguments the courts ultimately upholds, or that she is sharper-edged than other appellate judges – though she may be more loquacious than many.
Her favorite interjection is some version of, “The problem I’m having with your argument is…” Sotomayor also displays deep familiarity with the details of each case – she has been criticized in some quarters as too fact-oriented and technical – and a detectable enjoyment of the theater of the law. Liberals hoping for a judge to match conservative lion Antonin Scalia in the sheer joy of verbal combat may have found their woman.
POLITICO drew audio clips from five cases before Sotomayor over the last four years, which were provided this week in response to a request in late May for audio recordings from those and three others, which an official in the Second Circuit clerk’s office said are still being retrieved from archives. The cases range from the notorious – Ricci vs. DeStefano, the case brought by white New Haven firefighters denied promotion – to more obscure decisions regarding Chinese immigrants or New York cops. One thing they have in common: Three-member panels in which one judge, at least, isn’t shy.
In Ricci, for instance, the firefighters’ lawyer just barely had time to say her name when Sotomayor jumped in sharply, seeking to poke a major hole in her lawsuit:
“Counsel, I’m trying to figure out what defendant or what cause of action you’re defending to what defendant. Who are you suing for what?” Sotomayor asked, suggesting that the mayor and other politicians named in the suit couldn’t be targets of the firefighters’ lawsuit.
“Politicians every day get up in all types of forum and make the most ridiculous arguments – some of them illegal,” Sotomayor remarked, explaining “my problem” with the lawyer’s claims. “You’re saying the mere advocacy of an opinion can make those three others liable?” (Listen to the exchange here).
Sotomayor wasn’t shy about correcting New Haven’s lawyer in Ricci as well – “Well counsel, this really begs a lot of questions,” she told him with a sigh at one point (listen here)— but she saved most of her scorn for an increasingly plaintive Torre.
“Counsel, we’re not suggesting that unqualified people be hired,” she said with an air of exasperation later in the argument. (Listen here).
In a less well-known case, Jiang vs. BCIS, Sotomayor and her colleagues considered the immigration authorities plans to deport a Chinese immigrant on the grounds that she had participated in persecution in China, where she worked in a family planning clinic where women were forcibly given birth control devices.
Sotomayor and her most vocal colleague, Judge Rosemary Pooler, raised most of their questions about the government’s case, suggesting the authorities have been inconsistent on what constitutes persecution. But Sotomayor’s sharpest intervention came when the immigrant’s lawyer veered into the suggestion that forcing an intra-uterine device into a woman was, at least, preferable to a forced abortion.
“I guess you’re unfamiliar with all the literature that suggests that any unconsented touching of a women causes trauma? So you don’t care about that either?” she interjected sharply.
“Of course I care about that your honor,” Jiang’s lawyer replied quickly.
“Why are you taking a position on an issue that’s not presented here?” Sotomayor asked, leaving the lawyer stammering until Pooler jumped in to rescue him. (Listen here).
But Sotomayor also delivered an extended grilling, and multiple interruptions, to the government lawyer.
“Counselor – then how do you square the BIA’s decision in other cases that forcible insertion of IUD’s is not persecution,” she said with another audible sigh amid an extended back and forth. “I’m trying to discern is the line the BIA is drawing. Where is that line?” (Listen here -- Sotomayor is the first judge to speak in the clip. Pooler is the other.) In that case, the first lawyer appears to have been rattled enough by his grilling – and pleased by the judges’ grilling of his adversary – that he chose not to give the rebuttal for which he’d reserved time.
“If the court has no further questions I would rest on the discussion in the previous session that we had,” he said.
A 2005 case on the charged subject of eminent domain and taking property, Didden v. Village of Port Chester, offers a third glimpse of Sotomayor’s sometimes-combative style.
“Stop! Answer my question!” she instructed the plaintiff’s lawyer as he sought to explain his clients’ delay in filing their lawsuit. (Listen here).
“ The problem I’m having with your argument is that you’re using – both the village and the developer – are using the power of condemnation as a chit between the two of you, in terms of extorting each other,” she told the lawyer for the developer later in the argument. (Listen here).
Sotomayor also played a role in the better-known case of Maloney vs. Cuomo, which focuses on the question of whether the martial arts weapons known as numchucks are covered by the Second Amendment.
Sotomayor’s ruling against the plaintiff spurred fierce criticism from the National Rifle Association, which cited the ruling in opposing her nomination.
“You’re admitting that Heller’s not directly on point but we precedent that says we have to give due respect to the state’s rights to declare certain weapons illegal,” she said. (Listen here).
Later that day, in the more obscure case, Mullins v City of New York., of a New York Police Sergeant,suing the city alleging it had mistreated him during an internal investigation, Sotomayor demonstrated her eagerness to get into the weeds of case, and even to lecture lawyers on what their clients should have done.
The case hinged on whether city investigators had threatened the sergeant while interrogating him about his alleged lies under oath.
“Your investigation should have investigated, amassed your evidence, filed the charge and gone into court – and gone into your disciplinary hearing. But instead what you did was create the appearance of retaliation by insisting on an interview that frankly I don’t know why you needed,” she said disdainfully. (Listen here).
The full oral arguments for four of the cases are available here:
Sound to me like she won’t be able to shut her mouth and actually listen to the merits of the case, a la Thomas.
Buh-bye
Being a tough-talking cookie on the bench is one thing (maybe the only thing) I won’t fault her for.
I had the opportunity during a law school field trip to watch the legendary Judge Ellen Morphonios in action. Her obit is a good read, if you’re not familiar with her. More judges should take this straight-talking attitude, and not take any crap from attorneys, plaintiffs, defendants, or witnesses.
http://articles.latimes.com/2002/dec/26/local/me-ellen26
Was she drugged during the hearings? She sure sounded like it. New Yorkers don’t talk like that unless there is a problem of some kind.
Does anyone else think that she looks, acts and sounds like Roseanne Barr?
Why do things like this come out AFTER the hearings are over?
Zot @ 23
The list, ping
I find the use of the term "we're" quite interesting. One would assume that the judge would not be advocating a side during oral arguments.
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