Holly Bailey
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Jun 15, 2009 12:53 PM
NPR’s Nina Totenberg had an interesting piece on Morning Edition this morning looking at the main rap against Sonia Sotomayor. Long story short, people have said she’s pushy, going so far as to describe her as “bully” on the bench. The labels have been circulating for months, long before Sotomayor was actually named as Barack Obama’s Supreme Court nominee. Since then, the White House has gone to great lengths to push back against the claims, producing clerks and lawyers who have worked with Sotomayor who insist she’s just fine. But the rumors just won’t go away. More recently, Sen. Lindsay Graham has cited reviews mentioned in The Almanac of the Federal Judiciary, which included anonymous comments describing her as a “terror on the bench” and “overly aggressive.” But is the criticism legitimate or is it, as some Sotomayor allies suggest, a case of her being picked on for being a strong woman? For the piece, Totenberg listened to audio recordings of two oral arguments made before Sotomayor—portions of which aired in the story this morning and are well worth a listen. One of the oral arguments is from the much-debated New Haven firefighters case, which is still pending before the Supreme Court. Here's Totenberg:
In another case, currently on appeal to the U.S. Supreme Court, Judge Sotomayor was one of three judges considering whether the city of New Haven, Conn., could discard the results of a fire department promotion exam because no African-American ranked high enough to be promoted. Under federal law, an employer can be held liable even for unintentional discrimination if the employer uses a test that disproportionately excludes minorities. At oral argument, Judge Sotomayor was the dominant questioner, and she gave both sides a hard time.
She pressed the lawyer representing the white firefighters this way: "We're not asking that unqualified people be hired — the city's not suggesting that. But if your test is going to always put a certain group at the bottom of the pass rate so they're never, ever going to be promoted, and there is a fair test that can be devised, then why shouldn't the city have an opportunity to try to look and see if it can develop that?" Conversely, in questioning the city's lawyer, Sotomayor repeatedly asked what was wrong with the test that was given and whether any valid alternatives exist. "What they're saying is … you shouldn't permit race to be the driving force," Sotomayor said. "You have to look at the test and determine if the test was fair or not. And if you're going to say it's unfair, point to specifics of ways it wasn't and make sure there really are alternatives."
In the audio, Sotomayor is no doubt aggressive in her questioning but does not appear to be any more so than most judges--though, of course, these are just two cases. But Totenberg, who is much smarter than your Gaggler when it comes to history on the court, says Sotomayor's tone seems "routine" compared to what happens at the Supreme Court--and includes audio of Chief Justice John Roberts and Justice Antonin Scalia to prove it.
