Judicial Temperament and Gender


This New York Times article by Jo Becker and Adam Liptak is a perfect example of how the traditional media can invent a controversy and then report it as if it were a legitimate issue. Under the title “Sotomayor’s Sharp Tongue Raises Issue of Temperament,” Becker and Liptak go on for two screens spinning a three-course meal out of cotton candy:

Judge Sonia Sotomayor, President Obama’s Supreme Court choice, has a blunt and even testy side, and it was on display in December during an argument before the federal appeals court in New York. The case concerned a Canadian man who said American officials had sent him to Syria to be tortured, and Judge Sotomayor peppered a government lawyer with skeptical questions.“So the minute the executive raises the specter of foreign policy, national security,” Judge Sotomayor asked the lawyer, Jonathan F. Cohn, “it is the government’s position that that is a license to torture anyone?”

Mr. Cohn managed to get out two and a half words: “No, your hon—— .”

Judge Sotomayor cut him off, then hit him with two more questions and a flat declaration of what she said was his position. The lawyer managed to say she was wrong, but could not clarify the point until the chief judge, Dennis G. Jacobs, stepped in, asking, “Why don’t we just get the position?”

To supporters, Judge Sotomayor’s vigorous questioning of the Bush administration’s position in the case of the Canadian, Maher Arar, showcases some of her strengths. She is known as a formidably intelligent judge with a prodigious memory who meticulously prepares for oral arguments and is not shy about grilling the lawyers who appear before her to ensure that she fully understands their arguments.

But to detractors, 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. Her demeanor on the bench is an issue that conservatives opposed to her nomination see as a potential vulnerability — and one that Mr. Obama carefully considered before selecting her.

I love that last part: so earnest and sincere in its implied assumption that “Mr. Obama” takes the notion that there is a “problem” with Judge Sotomayor’s “temperament” with the same grave seriousness as do Becker and Liptak.

And seriously, why are we even seeing articles like this? Who cares about Sonia Sotomayor’s temperament, short of something truly extreme — which no one is even coming close to alleging, if you’ll notice all the “Some colleagues say,” and “She can occasionally be,” and “She does have a testy side,” et al., ad nauseum? Who thinks that Sotomayor’s confirmation to the Supreme Court hangs on how many times in the last 30 years she has spoken sharply to an attorney during oral arguments?

Maybe that’s the point:

You want to know why those opposing Sotomayor keep raising this issue of “she’s a bitch on the bench?” (And how often have you seen this tack with a man.  Honestly.)

It’s because they know that a Heathers campaign is media catnip.

The titillating nature of junior high anonymous gossip mongering is so much more amusing and more easily understood by political reporters who don’t bother trying to comprehend legal intricacies.

Having to wade through all those tedious legal opinions?  It’s hard work.  Forcing people to go on the record if they want to snipe?  Glenn’s been having a field day with this sort of idiocy, and for good reason.

It’s just easier to pass notes in class and knife someone in the back anonymously, isn’t it?

Oh, now isn’t this interesting: Darren Hutchinson notices something that I completely missed, to my shame. The title of the Times article — “Sotomayor’s Sharp Tongue Raises Issue of Temperament” — itself raises the issue of the way word choice reveals bias — in this case, gender bias. Prof. Hutchinson points out (see his Update) the sexist language, and the fact that the title has been edited to read, “Sotomayor’s Blunt Style Raises Issue of Temperament.”

Scalia’s blunt style raises no issues of temperament, however. Prof. Hutchinson has more on that point, as well:

Assertiveness in women — especially women of color — is perceived as inappropriate. In men, however, toughness proves that they are strong and capable. The Almanac of the Federal Judiciary primarily describes Sotomayor’s assertive questioning as a negative, but with respect to Justice Scalia, whom many people view as exceedingly difficult during oral arguments, the book depicts his toughness in very positive terms.

Brian Beutler has an insightful post at TPMDC about the stark contrast between Republican leaders in Congress, and movement conservatives outside of Congress, regarding Judge Sotomayor’s confirmation hearings.

Cross-posted at The Moderate Voice.

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