Democrats and Sotomayor Have a Bolton Problem

Jeffrey Rosen, writing in The New Republic, highlights President Barack Obama's Supreme Court nominee Sonia Sotomayor's entry in the Almanac of the Federal Judiciary, which lists federal judges and rates them based upon the reviews of lawyers that have argued before or worked with each judge. Sotomayor, it seems, has a bad judicial temperament.

"Sotomayor can be tough on lawyers, according to those interviewed. "She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive--not very judicial. She does not have a very good temperament." "She abuses lawyers." "She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like." [emphasis added]

Rosen had earlier reported on conversations he had with lawyers, clerks, and former judges on Sotomayor's Second Circuit, most of whom raised similar concerns about her fitness for the bench based on her "domineering" temperament and her "inflated opinion of herself." The almanac's entry confirms those observations.

The criticisms of Sotomayor by those who worked with her bear resemblance to those levelled at former U.N. Ambassador John Bolton during his confirmation hearings. Bolton was assailed by Senate Foreign Relations committee Democrats over allegations that he was a "bully" who routinely abused those in subordinate positions. The question of temperament was a key rationale used by Senate Democrats, and some Republican defectors, to deny the impeccably qualified Bolton confirmation.

Most legal scholars would agree that judicial temperament should be one of the most important factors in considering a nominee's fitness for the bench, along with experience and legal ability. Sotomayor's experience is not in doubt, although some have cast aspersions on her legal reasoning. Her temperament, on the other hand, falls well short of the standard expected in a Supreme Court Justice.

All judges must hear arguments dispassionately, and without regard to personal beliefs. That is especially true of the Supreme Court, where the weightiest of legal issues are decided with consequences for the entire nation. A justice cannot "attack" lawyers' arguments personally, must "understand their role" as adversaries advancing the interests of their clients, and cannot be "angry" and "excitable" on the bench. Based on the reviews of those who know best how she works, Sotomayor has not lived up to these standards.

Senate Democrats who voted against John Bolton for the U.N. ambassadorship based on concerns about his temperament cannot now justify their votes for Sotomayor, whose temperament has also been questioned. Her apparent lack of proper courtroom demeanor in deciding legal issues will certainly impact Americans more than any alleged lack of decorum exhibited by Bolton on the diplomatic front. When Democrats vote for her, they will be saying that Americans do not deserve a fair and dispassionate justice as much as foreign governments deserve a demure representative of U.S. national interests.