Sotomayor and Roberts on the Bench Together:
Well, the moot court bench. Video here, from the 2006 GW Law Moot Court.
Psalm91 (mail):
CSPAN had this linked some time ago. She appears to have the better judicial temperment.
5.27.2009 12:15am
advisory opinion:
I disagree. I found her abrasive and overbearing, and the least temperamentally sound on the panel. I encourage all to watch the video and come to your own conclusions, instead of relying on declaratory ipse dixits that she has "the better judicial temperament" -- a view not shared by many who have appeared before her. See also Arar v. Ashcroft, another unflattering performance.
5.27.2009 1:58am
Asher (mail):
I disagree. I found her abrasive and overbearing, and the least temperamentally sound on the panel.

Just out of curiosity, how would you (assuming you've heard recordings of the current Court) rate Scalia's temperament?

That said, 12 minutes in, I don't entirely disagree with you. Perhaps she wouldn't act this way in a real court, but the "I'm sorry, would you go back and explain that test to me?" moment was a little grossly condescending.
5.27.2009 2:57am
advisory opinion:
Scalia is as roguish as Posner is catty, but I don't think he rates badly. He has a sense of humor, and that helps a lot (Sotomayor by contrast appears humorless). Am I biased? Perhaps. But at least one liberal justice -- Ginsburg -- thinks that he is "charming," so there's probably something to that view (that one can be caustic but not personally abrasive). That said, I should add that I don't think temperament is a disqualifying factor: I would not have nominated Sotomayor in the first place, but now that she is nominated, questions of temperament shouldn't impede her confirmation.
5.27.2009 3:26am
BZ (mail):
I have never been before Judge Sotomayor, but I've been a judge in the Van Vleck tournament (the moot court in the video) and in other such moots, as well as countless appellate arguments. Once, when I argued in a case where the Court eventually unanimously went my way, Scalia made a "humorous" comment (at least the audience laughed). It was funny, in retrospect, but during the argument it was a distraction and disorienting, not because it was funny, but because he so succinctly summarized and answered an important point in the case.

In the same argument, the questions flew so fast and furious I experienced the quintessential Supreme Court mental fugue: you hear the words but they seem to come at you from all sides. And they probably did. The transcript reflects pages on pages of questions, with an occaisional interruption by me of "May I . . .?" and "But . . .?"

In a more recent argument, I knew I was in trouble when the judge on the right side of the bench, who had specially designated himself onto my panel because he'd been writing about my arcane procedural issue for 20 years, said to me: "I have a concern about the present state of the law." He proceeded to speak for 45 of my 30 minutes, essentially without a break. And then wrote an opinion reversing the 20-year trend of the federal and most state courts.

And at a recent, "real" moot for a Supreme Court argument, the questioning was so fast and furious, including many comments like "I don't understand your argument on . . .", that the presenter had little time to address the points he wanted to make. Even I, who had more substantive time on the points in the case as well as more actual court time than many of the active participants, couldn't get a question in edgewise. Nevertheless, it was an effective moot, and prepared the participants.

The panel on this video was not at all out of the ordinary for a moot, including Sotomayor. If a judge sits quietly at a moot like Clarence Thomas, you have lost a prime opportunity to educate the students, who believe that good logic is all-important; it is not, in a moot, where perfecting your presentation is at least as important. They do not teach, in law school or elsewhere, what it is like to be on the firing line, as the judges on a "hot bench" fire questions at you, some of which are totally off-the-wall. But a moot, done well, does that. It is not just about logic, but about organization, preparation, and the ability to turn questions onto your points.

The questioning at the 12 minute mark (identified above as "condescending") was not, to my mind, inappropriate either in a moot or in a regular appellate argument. She was trying to understand what the argument was, keeping in mind that this was a gifted student, but a student nonetheless. Her tone was not acerbic; it seemed that she wanted a clarification. She had read the briefs, knew the law, and was trying to tease out the argument she felt was at the crux of that point.

This was not even in the ballpark of, say, Ginsburg-style harsh ad hominem questioning.

I am not a fan of Sotomayor's nomination. I think it was the worst, substantively, of the likely ones on Obama's list. But criticize Sotomayor for what she says and believes, not because of her relatively-normal questioning on this video.
5.27.2009 10:14am
During our moot court finals, I remember Justice Scalia interrupting the petitioner's counsel after about 5 seconds to ask, "How was this issue preserved for review in the lower court?" An entirely normal question for a real appellate argument, completely unexpected and befuddling for the poor student. You live, you learn!
5.27.2009 10:33am

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