Bullying From the Bench

From today’s Senate confirmation hearings (here and here) for Judge Sonia Sotomayor (hat tip: Andy):

GRAHAM: OK. Now, let’s talk about you. I like you, by the way, for whatever that matters. Since I may vote for you that ought to matter to you. One thing that stood out about your record is that when you look at the almanac of the federal judiciary, lawyers anonymously rate judges in terms of temperament. And here’s what they said about you.

She’s a terror on the bench. She’s temperamental, excitable, she seems angry. She’s overall aggressive, not very judicial. She does not have a very good temperament. She abuses lawyers. She really lacks judicial temperament. She believes in an out — she behaves in an out-of-control manner. She makes inappropriate outbursts. She’s nasty to lawyers. She will attack lawyers for making an argument she does not like. She can be a bit of a bully.

When you look at the evaluation of the judges on the Second Circuit, you stand out like a sore thumb in terms of your temperament. What is your answer to these criticisms?

SOTOMAYOR: I do ask tough questions at oral arguments.

GRAHAM: Are you the only one that asks tough questions in oral arguments?

SOTOMAYOR: No, sir. No, not at all. I can only explain what I’m doing which is when I ask lawyers tough questions, it’s to give them an opportunity to explain their positions on both sides and to persuade me that they’re right.

I do know that, in the Second Circuit, because we only give litigants 10 minutes of oral argument….

…each, that the processes in the second circuit are different than in most other circuits across the country. And that some lawyers do find that our court, which is not just me, but our court generally, is described as a hoc bench, it’s term that lawyers use. It means that they’re peppered with questions.

Lots of lawyers who are unfamiliar with the process in the second circuit find that tough bench difficult and challenging.

GRAHAM: If I may interject, judge, they find you difficult and challenging more than your colleagues. And the only reason I mention this is that it stands out. When you — there are many positive things about you and these hearings are designed to talk about the good and the bad and I never liked appearing before a judge that I thought was a bully.

It’s hard enough being a lawyer, having your client there to begin with, without the judge just beating you up for no good reason. Do you think you have a temperament problem?

GRAHAM: No, sir. I can only talk about what I know about my relationship with the judges of my court and with the lawyers who appear regularly from our circuit. And I believe that my reputation is stuck as such that I ask the hard questions, but I do it evenly for both sides.

GRAHAM: And in fairness to you, there are plenty of statements in the record in support of you as a person, that do not go down this line. But I will just suggest to you, for what it’s worth, judge, as you go forward here, that these statements about you are striking. They’re not about your colleagues.

The ten-minute rule applies to everybody and that obviously you’ve accomplished a lot in your life, but maybe these hearings are time for self-reflection. This is pretty tough stuff that you don’t see from — about other judges on the second circuit.

The “bullying” issue had been raised a while ago by Professor Jeffrey Rosen in a “report” in The New Republic (hat tip: James Oliphant):

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.”

Consider Sotomayor’s statement that I have emphasized above:

I ask the hard questions, but I do it evenly for both sides

Is punctiliousness a defense agains the charge of aggressiveness?

Toras Kohanim:

לא תלך רכיל בעמך. שלא תהיה רך דברים לזה וקשה לזה.1

Rambam and Maran:

מצות עשה לשפוט השופט בצדק שנאמר בצדק תשפוט עמיתך. איזה הוא צדק המשפט זה השויית שני בעלי דינין בכל דבר … לא יסביר פנים לאחד וידבר לו רכות וירע פניו לאחד וידבר לו קשות2

It is clear from the above formulations that there is nothing wrong with toughness, as long as the judge is impartial about it.

By analogy, another requirement of impartiality mentioned by Rambam and Maran in the very same passage is:

לא יהיה אחד מדבר כל צרכו ואחד אומר לו קצר דברך

and Bah and Shach indeed infer that the judge may restrict both litigants equally:

ונראה דכשאומר לכל אחד משניהם קצר דבריך אין בזה איסור3

קצר דבריך כו’ אבל לשניהם יכול לומר ב”ח ופשוט הוא4

On the other hand, Rav Zvi Hirsch Kalischer considers it self evident that this is only permitted if the judge sets forth the guidelines for both parties simultaneously:

וצריך לומר לשניהם יחד בלשון רבים קצרו דבריכם ואל תאריכו בדבר שאינו נפקותא, אבל אם תחלה אומר לראשון הטוען אף שאחר כך אומר גם לשני כו’ מכל מקום בשעת טענתו מסתתמין טענותיו והוא פשוט:5

So it would seem, then, that bullying each side successively might actually be problematic, unless perhaps if the judge were to make clear in advance that he plans on doing so.

I have long wondered about the following question, though: suppose that one party behaves rudely and violates the court protocol, and continues to do so even after being respectfully asked to modify his conduct, while the other party’s decorum is exemplary. May the judge sharply reprimand the one who deserves it, or would this violate the prohibition against acting רך לזה וקשה לזה? On the one hand, we can argue that such an attitude is perfectly acceptable, since it is actually completely impartial; the judge’s departure from pure equality is solely in reaction to the varied conduct of the litigants. On the other hand, since, as noted by Rav Kalischer, the basis for the prohibition against a judge’s exhibition of partiality is rooted in the concern of שמא יסתתמו טענותיו של הבעל דין, perhaps since אין אדם רואה חובה לעצמו, and the rude litigant doubtless deems himself perfectly justified from his own perspective, he may indeed become intimidated by the judge’s censure, and may consequently be unable to present his case properly.

It seems to me, though, that we should not be overly concerned for the interest of such an individual; איהו דאפסיד אנפשיה. Since the judge’s entire deviation from pure equality is due to the litigant’s own improper conduct, he has no right to complain of it.

  1. קדושים פרק ד’ הלכה ה’, מועתק מפה []
  2. יד החזקה הלכות סנהדרין ריש פרק כ”א, ובמגיד משנה ציין לתורת כהנים הנ”ל, שולחן ערוך חו”מ ריש סימן י”ז, ועיין הלכות דיינים (מכון הרי פישל) שם הערה 10 []
  3. ב”ח שם []
  4. ש”ך שם ס”ק א []
  5. מאזניים למשפט שם, מועתק מפה והובא בהלכות דיינים שם הלכה פסוקה אות ב’, ועיין שם בהערה 6 שרצו להוכיח שאין דינו של הרב קאלישר מוסכם []
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