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How Sotomayor’s Incisive Questioning on Executive Power Became Sotomayor’s ‘Blunt and Testy’ Style

When I watched Supreme Court nominee Sonia Sotomayor’s questioning of the government’s lawyer in the extraordinary rendition case of Arar v. Ashcroft in December, which I wrote about in detail Wednesday, I was struck by Sotomayor’s immediate grasp of the troubling implications of the government’s position.

As Sotomayor put it to Jonathan Cohn, the Justice Department lawyer arguing the case before the Second Circuit Court of Appeals: “So the minute the executive raises the specter of foreign policy or national security, it is the government’s position that that is a license to torture anyone, a U.S. citizen or a foreign citizen? License meaning you can do so without any financial consequence. That’s your position?”

Oddly, The New York Times and most media outlets have largely ignored Sotomayor’s questioning at that tense and controversial two -hour-long oral argument in December. When The Times did report on it, however, the reporters used the exchange not to reveal an insight about Sotomayor’s grasp of the issue or concerns about torture or the abuse of executive power, but to illustrate a point that Jeffrey Rosen had first made in a New Republic article citing anonymous lawyers calling Sotomayor “a bully on the bench.”

Under the headline “Sotomayor’s Blunt Style Raises Issue of Temperament,” (the headline earlier in the day, as Canadian blogger Juliet Waters points out, was “Sotomayor’s Sharp-Tongue Brings Up Issues of Temperament”), reporters Joe Becker and Adam Liptak used the exchange in the Arar case to say that Sotomayor “has a blunt and even testy side” which “was on display in December during an argument before the federal appeals court in New York.”

The reporters largely ignored the substance of the exchange, but characterized Sotomayor has “pepper[ing] a government lawyer with skeptical questions.”

Here’s the Times’ description of Sotomayor’s exchange with the government lawyer:

“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?”

The Times went on to say that “some lawyers have described her as ‘difficult’ and ‘nasty’” and that this “raises questions about her judicial temperament and willingness to listen.”

In fact, if you listen to the entire two-hour argument, or even just to the complete hour-long section in which the judges question the government’s lawyer, Sotomayor, in context, is mild-mannered compared to many of her colleagues, and far less argumentative.

Judge Calabresi, for example, whose own skepticism of the government’s argument was obvious, dominated the questioning of the government’s lawyer, interrupting him at least ten times to force him to clarify his position and its implications. Other judges, such as Judge Rosemary Pooler (also clearly disturbed by Cohn’s position) and Judge Reena Raggi also interrupted the government’s lawyer repeatedly. And Chief Judge Dennis Jacobs, who was evidently more sympathetic to the government’s position than were many of his colleagues, stepped in at least three more times to ask the other judges to back off and let the lawyer make his case.

“Excuse me, I think all these questions are out of order” Jacobs said at one point, interrupting Judge Parker, one of several judges who was challenging the lawyer with difficult procedural questions in what was an extremely complex and unusual case. “I don’t even know what the question is that’s pending,” he added, with obvious irritation that his colleagues weren’t letting the government’s lawyer present his case.

Of course, in an en banc appellate court argument where 12 judges are questioning a single lawyer at a time, that’s the role of the court — not to sit passively for a lecture from the lawyer, but to challenge the lawyers on all sides to address the difficult and complicated procedural and substantive legal issues that have led the court to take on a full-court argument in the first place. (Most courts of appeals choose to re-hear only one or two cases a year in this manner, and then only the most controversial and important ones.) To argue that Sotomayor was inappropriately abrupt or “testy” makes no sense in the context of the actual court argument.

Putting the lawyers to the test is exactly what the judges are supposed to do, and it’s a role that Judge Sotomayor played extremely well in the case of Maher Arar.

*TWI is on Twitter. Please follow us here. *

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