Tough Questions and Tougher Judges

If only that exchange about temperament with Sen. Lindsey Graham had gone on longer, Dahlia, so Judge Sotomayor could have trounced him on it. (Not that she would have, but I can dream.) At least Sotomayor got to say that she’s not the only tough questioner at oral argument. I should say not. I continue to think the bullying charge against her is heavily gender-inflected. Highly respected judges like Richard Posner and Frank Easterbrook make the lawyers appearing before them cower, and no one says boo to them about it. When states invite lawyers to evaluate judges, “often these evaluations have proven to be an open invitation to biased assessments in which competent, even-tempered female and minority judges are rated as subpar and lacking in judicial temperament,” a symposium by the National Association of Women Justices found. In 1994, former Justice Sandra Day O’Connor wrote that “attorney evaluations of judicial performance revealed a ‘pattern of bias’ ” against women on the bench.

Justice Ruth Bader Ginsburg, who doesn’t have to mince her words for the senators, nailed this when I had the great luck to talk to her two weeks ago. “The notion that Sonia is an aggressive questioner—what else is new?” she said. “Has anybody watched Scalia or Breyer up on the bench?” If Sotomayor gets on the court, she said, “she’ll hold her own.”