Tuesday, July 14, 2009

Lindsey Graham vs. Sonia Sotomayor

A little peek into the Sotomayor hearings and some of the nonsense the Republicans are stirring up.

Here's Lindsey Graham putting to Sotomayor anonymous comments from lawyers about her judging, all of which are derogatory and which, you can imagine, may have their motivations:

Here's the transcript of the exchange, just to show how far the anonymous comments went and, to be fair, to note that they were premised with Graham's avowal that he may vote for her despite venturing down this road:
(UNKNOWN): OK. Now, let's talk about you. I like you, by the way, for whatever that matters. Since I may vote for you that ought to matter to you. One thing that stood out about your record is that when you look at the almanac of the federal judiciary, lawyers anonymously rate judges in terms of temperament. And here's what they said about you. She's a terror on the bench. She's temperamental, excitable, she seems angry. She's overall aggressive, not very judicial. She does not have a very good temperament. She abuses lawyers. She really lacks judicial temperament. She believes in an out -- she behaves in an out-of-control manner. She makes inappropriate outbursts. She's nasty to lawyers. She will attack lawyers for making an argument she does not like. She can be a bit of a bully. When you look at the evaluation of the judges on the Second Circuit, you stand out like a sore thumb in terms of your temperament. What is your answer to these criticisms?

SOTOMAYOR: I do ask tough questions at oral arguments.

(UNKNOWN): Are you the only one that asks tough questions in oral arguments?

SOTOMAYOR: No, sir. No, not at all. I can only explain what I'm doing which is when I ask lawyers tough questions, it's to give them an opportunity to explain their positions on both sides and to persuade me that they're right. I do know that, in the Second Circuit, because we only give litigants 10 minutes of oral argument each, that the processes in the second circuit are different than in most other circuits across the country. And that some lawyers do find that our court, which is not just me, but our court generally, is described as a hoc bench, it's term that lawyers use. It means that they're peppered with questions.

Lots of lawyers who are unfamiliar with the process in the second circuit find that tough bench difficult and challenging.

(UNKNOWN): If I may interject, judge, they find you difficult and challenging more than your colleagues. And the only reason I mention this is that it stands out. When you -- there are many positive things about you and these hearings are designed to talk about the good and the bad and I never liked appearing before a judge that I thought was a bully. It's hard enough being a lawyer, having your client there to begin with, without the judge just beating you up for no good reason. Do you think you have a temperament problem?

(UNKNOWN): No, sir. I can only talk about what I know about my relationship with the judges of my court and with the lawyers who appear regularly from our circuit. And I believe that my reputation is stuck as such that I ask the hard questions, but I do it evenly for both sides.

(UNKNOWN): And in fairness to you, there are plenty of statements in the record in support of you as a person, that do not go down this line.

But I will just suggest to you, for what it's worth, judge, as you go forward here, that these statements about you are striking. They're not about your colleagues. The ten-minute rule applies to everybody and that obviously you've accomplished a lot in your life, but maybe these hearings are time for self-reflection. This is pretty tough stuff that you don't see from -- about other judges on the second circuit. (emphasis added)
A few points. It's just so unremarkable that an appellate judge would ask tough questions. Graham's digging into the realm of anonymous comments where lawyers can take freebie pot shots at a tough judge, who may in fact have ruled against them, demonstrates the stretching going on among Republicans to formulate a substantive bit of consent and advice.

But his willingness to suggest that she has a temperament problem based on what appear to be over the top comments motivated by some intense dislike is inappropriate. Sure, he's playing his Republican role to the hilt. But the tenor of those comments suggest that perhaps it is the anonymous lawyers with the temperament problems who have chosen to comment on her with such language. She's a terror...excitable...out of control. And the fact that Sotomayor elicits such remarks at all - along with good ones, by the way, unstated by Graham - when her colleagues on her bench apparently do not...do we really need to think too hard about any of this? File under things you don't hear being said about male judges. But file under things you may well hear being said about women hispanic judges.

Sotomayor's demeanour and response to Graham's questions are fair enough indications of the "temperament" she would bring to the bench.

This follow-up video seems to put Graham's bit in better perspective: