This issue is part of the spaghetti-on-the-fridge approach: throw out as many as you can, and see what sticks. A red herring: any diversion intended to distract attention from the main issue.
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.
But to detractors, Judge Sotomayor’s sharp-tongued and occasionally combative manner — some lawyers have described her as “difficult” and “nasty” — raises questions about her judicial temperament and willingness to listen. Her demeanor on the bench is an issue that conservatives opposed to her nomination see as a potential vulnerability — and one that Mr. Obama carefully considered before selecting her.
A man would be called assertive, and praised.
Judge Sotomayor’s colleagues on the United States Court of Appeals for the Second Circuit say her tough and direct questioning reflects engagement and, sometimes, an effort to persuade her colleagues. Those qualities, coupled with a gregarious personality, they said, make her a powerful force behind the scenes, where she has used her mastery of the cases to change minds, improve opinions and forge consensus.
Being nasty is a minus? Who compalined? Lawyers whose feeligns were hurt? C'mon.
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.
Ah, yes, acerbic. Is Scalia criticized for his temperament? No, conservatives sing his praises.
“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.”
There you go.
“They call it a hot bench when a judge asks a lawyer a lot of questions — well, she isn’t afraid of running a hot bench,” said H. Raymond Fasano, a Republican immigration lawyer who has appeared before her 24 times, mostly in asylum cases, and is a fan. “When a judge asks a lot of questions, that means she’s read the record, she knows the issues and she has concerns that she wants resolved. And that’s the judge’s job.”
Who expects the judge to be a pushover? Judges are supposed to guard the integrity of the law and to run a fair courtroom, not to pander and meander.
Judge Guido Calabresi, a former dean of Yale Law School who taught Ms. Sotomayor there and now sits with her on the Second Circuit, said complaints that she had been unduly caustic had no basis. For a time, Judge Calabresi said, he kept track of the questions posed by Judge Sotomayor and other members of the 12-member court. “Her behavior was identical,” he said.
“Some lawyers just don’t like to be questioned by a woman,” Judge Calabresi added. “It was sexist, plain and simple.”
He said Judge Sotomayor’s forceful and lucid arguments had persuaded him to reconsider his position in a number of instances. “And I’m a tough act,” he said.
Other colleagues said Judge Sotomayor frequently sent unusually detailed, closely reasoned and helpful memorandums critiquing their draft opinions. “She will offer substantive suggestions,” said Judge Jon O. Newman, “but she will not be tenacious in making sure the language comes out exactly her way.”
Laurence H. Tribe, a Harvard law professor who served as an adviser in the process that led to Judge Sotomayor’s selection for the Supreme Court, said the White House had found concerns about her temperament unfounded, concluding instead that her background and her concern with the consequences of court rulings would be a “healthy antidote” to more formalist legal theories advocated by the Supreme Court’s conservative wing.
And the right wing does not like that.