Just How Important is Judicial Temperament ?

>> Sunday, June 7, 2009

During the confirmation process of Sonya Sotomayor the question of "Judicial Temperament" has come up. This seems like one of the weakest criticisms i have ever seen for a potential judicial nominee. There are several reasons for this but the one i think is most salient is that the activity where the "temperament" is most relevant is least important in the appeal-- oral arguments.

This Washington Times piece encapsulates the conservative critiques of her "temperament" begun by the now legendary Rosen piece.

Lawyers who have argued cases before Supreme Court nominee Sonia Sotomayor call her "nasty," "angry" and a "terror on the bench," according to the current Almanac of the Federal Judiciary -- a kind of Zagat's guide to federal judges.

The withering evaluation of Judge Sotomayor's temperament stands in stark contrast to reviews of her peers on the 2nd U.S. Circuit Court of Appeals. Of the 21 judges evaluated, the same lawyers gave 18 positive to glowing reviews and two judges received mixed reviews. Judge Sotomayor was the only one to receive decidedly negative comments.

Judge Sotomayor's demeanor on the bench will be one of the issues the Senate Judiciary Committee tackles when she appears for her confirmation hearing. A lack of a good temperament has been used as a line of attack against nominees in the past - most notably conservative Judge Robert H. Bork, whose nomination to the Supreme Court was defeated.

For a better sourced, more in depth, look at her "temperament" while on the bench see the NYT piece.

The basic argument is that she is very mean to lawyers during oral arguments, cutting them off and not letting them make the point they want to make. This may not be too much fun for the lawyer arguing before the court because most appellate advocates do have some points that they want to make. However, the importance of the oral arguments is greatly overblown when discussing the outcome of the appeal. In fact, in some cases the oral arguments are almost perfunctory or arent done at all. This reason that the oral arguments as important as they are often made out to be is that the heavy lifting, the winning arguments are made in the appellate briefs.

The appellate briefs are supposed to contain all of the best arguments for your position that you can include in the space allotted. This is why you will often hear that cases are won and lost on the briefs. It is only in a minority of cases where the oral arguments make the deciding factor.

In the majority of appellate cases, oral argument isn’t decisive; the
case is won or lost on the briefs. But in a significant minority of cases, oral argument is decisive. Probably somewhere between 10% and 35% of cases on appeal are won or lost on oral argument.

My point is not to say that oral arguments are not at all important or dont matter. The point is that the oral arguments are not the end all be all of a case. There are things that reveal just how important the oral arguments are in the scheme of things, the first is that only the counsel for that parties will be delivering an argument. Compare this with the fact that multiple interested parties are allowed to submit briefs on matters before the court. Just how important can an oral argument be if all of the relevant people arent getting up to speak? Information in an amicus brief could be crucial to the outcome yet entirely absent from the argument. Consider that according to, Oral Arguments Before the Supreme Court By Lawrence S. Wrightsman (preview)- the author of one the most controversial cases in recent memory, kelo v city of new london, john paul setevens wasnt even there for the oral arguments. Similarly, during his battle with cancer Chief Justice Rehnquist missed oral arguments for decisions he penned. Finally where as arguments used to run for days in front of the court, modern oral arguments run for 30 minutes. Briefs used to be -- well -- brief running only a few lines. In addition, not all cases before the Court are argued orally. The court takes about 75 cases a year yet not every case receives an argument. A few every year are decided without it.

One of the other notable things about Supreme Court oral arguments is that really only eight justices will be asking questions. Justice Thomas is known for his lack of participation in the questioning having foregone asking questions since a death penalty case in 2006. Thomas has his own opinion on the merits of oral argument,

"I think that they should ask questions, but I don't think that for judging, and for what we are doing, all those questions are necessary," he said. "You don't have to ask all those questions to judge properly." Thomas compared judging to another profession where debate isn't aired in public. "Suppose you're undergoing something very serious like surgery and the doctors started a practice of conducting seminars while in the operating room, debating each other about certain procedures and whether or not this procedure is this way or that way. You really didn't go in there to have a debate about gallbladder surgery. You actually went in to have a procedure done. We are judges. This is the last court in a long line in our system. We are there to decide cases, not to engage in seminar discussions. Now, each of us has a different way of thinking about things. Some people like to talk it out. Some people enjoy the questioning and the back and forth. Some people think that if they listen deeply and hear the people who are presenting their arguments, they might hear something that's not already in several hundred pages of records."

Thomas said that once the cases get to the Supreme Court, there are no surprises left. "This is not Perry Mason."

Its Justice Thomas' opinion that everyone has already made up their minds before the arguments commence. That should give you an indication about how important he thinks they are and he sits on the Court.

Again, arguments are important in a minority of cases. However, even if Judge Sotomayor is mean she has to share time between the seven other justices on the court. Court of appeals cases are argues before three judge panels meaning one judge has an easier time hogging up the time but the supreme court has seven other people asking questions.

While arguments can be fun and exciting they are not the be all end all of the appellate process. This naturally reduces the importance of the "judicial temperament" individual justices display while on the bench. The idea that anyone should be voting against a potential supreme court nominee because they arent the nicest person on the bench is simply wrong.


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