NYT Recycles 'Sharp-Tongue' Criticism Of Sotomayor

06/29/2009 05:12 am ET | Updated May 25, 2011

I don't think I mentioned it previously, but when President Barack Obama announced that he would be submitting Second Circuit Court of Appeals Judge Sonia Sotomayor's name for appointment to the Supreme Court, New Republic writer Jeffrey Rosen let it be known that he supported her confirmation, and that he wanted to make it clear that previous writings on the subject of Sotomayor needed to be put in the proper context:

Conservatives are already citing my initial piece on Sotomayor as a basis for opposing her. This willfully misreads both my piece and the follow-up response.

Well, for my part, you can just bet that I felt like a real a-hole for "willfully misreading" a piece that built a case against Sotomayor -- and that was titled "The Case Against Sotomayor" -- as if it were, somehow, a case against Sotomayor. Egg on my face!

Anyway, in that oft-misread piece, Rosen noted that Sotomayor's colleagues raised "questions about her temperament," that she was "a bully on the bench," "has an inflated opinion of herself," and is "domineering during oral arguments" -- clearly the sort of testimony that is easily misread! And, don't you know, the New York Times has gone and microwaved up a plate of Rosen today, in a piece that warns against her "sharp tongue."

Credit the Times for one improvement -- people actually willing to sign their names to their criticism. However, it isn't long before this piece's main thesis collides with reality, and you start to see that beneath the frenzied warning of a "blunt" and "testy" and "difficult" and "nasty" Sotomayor, the writers have to eventually acknowledge that when it comes to temperamental Supreme Court Justices, there's already an established precedent:

Those skills, some observers say, could make her an able politician on the Supreme Court and allow her to serve as an intellectual counterweight to Justice Antonin Scalia, a conservative who is known for his acerbic questioning.

"In some ways she could match, well, the other New Yorker on the court, Justice Scalia," said Douglas Kmiec, a law professor at Pepperdine University. "He expects people to give back as good as he gives, and I expect that when Justice Sotomayor is on the court, his wish will be fulfilled."

OH, YES. I had heard something, I think, about this man, Scalia, and his "personality." Let us flashback to February 5, Andrew Cohen reporting for CBS News:

Supreme Court Justice Antonin Scalia's famous temper is often discussed in legal circles as an indelible part of his forceful personality, as if it were a mole on his cheek or the accent that rolls off his tongue. Whenever he acts like a jerk, and that is a relatively common occurrence for a man who works within the semi-secret world of the High Court, we are told by his sycophants that he doesn't suffer fools gladly and that he has earned the right to be rude.

We are supposed to accept these excuses and explanations, shrug our shoulders, and hear his tribunes declare: well, cut the guy some slack, you know how moody geniuses are! Whatever you think about Scalia's jurisprudence, his bully routine is getting old. Tuesday afternoon, Scalia showed again just how easy it is to set him off when a college student asked him a reasonable, even poignant question about accessibility to the workings of the Supreme Court. Here is how the Fort Lauderdale Sun Sentinel chronicled the incident:

Student Sarah Jeck stood in front of 750 people and asked Scalia why cameras are not allowed in the U.S. Supreme Court even though the court hearings are open, transcripts are available and the court's justices are open enough to go 'out on book tours.' 'Read the next question,' Scalia replied. 'That's a nasty, impolite question.'

Perhaps you can find the part of Jeck's question that is "nasty" and "impolite." I can't.

And yet, somehow, the Republic has survived with this man on the Supreme Court!

Actually, there's one other extraordinary thing going on in this article about Sotomayor's "sharp tongue" and it comes up right in the lede, without much fanfare:

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.

That's right! The cited example of Sotomayor's temperament comes in the Maher Arar case, and if there was ever an occasion for "vigorous questioning," it is in that particular instance! I'll allow Wikipedia to summarize the particulars, which this article glossed over in earnest:

Arar was detained during a layover at John F. Kennedy International Airport in September 2002 on his way home to Canada from a family vacation in Tunis. He was held in solitary confinement in the United States for nearly two weeks, questioned, and denied meaningful access to a lawyer. The US government suspected him of being a member of Al Qaeda and deported him, not to Canada, his current home, but to his native Syria, even though its government is known to use torture. He was detained in Syria for almost a year, during which time he was tortured, according to the findings of the Arar Commission, until his release to Canada.

The government of Canada ordered a commission of inquiry which concluded that he was tortured. The commission of inquiry publicly cleared Arar of any links to terrorism, and gave him a C$10.5 million settlement. The Syrian government reports it knows of no links of Arar to terrorism.

Despite the Canadian court ruling, the United States government has not exonerated Arar and, on the contrary, has made public statements to state their belief that Arar is affiliated with members of organizations they describe as terrorist. As of February 2009, Arar and his family remain on a watchlist. His US lawyers at the Center for Constitutional Rights are currently pursuing his case, Arar v. Ashcroft, which seeks compensatory damages on Arar's behalf and also a declaration that the actions of the US government were illegal and violated his constitutional, civil, and international human rights.

Speaking only for myself, I think that if I were ever mistakenly sent to Syria to be tortured for a year, only to be greeted, upon release, by the United States government's refusal to acknowledge, rectify, or apologize for their error, I should hope I'd have at least one sharp-tongued judge probing the matter in depth!

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