Notes on Justice Sotomayor's Bench Presence During Oral Arguments

From the National Law Journal:

As Sotomayor wraps up her second full argument cycle as a Supreme Court justice, it has become clear that she is a prolific and fearless questioner. She can be tenacious and direct, bordering on harsh. She can be impatient when the lawyer does not answer her question precisely. She knows her stuff and clearly loves the give and take. All of which is to say, Sotomayor fits right in with her new colleagues, many of whom do exactly the same thing. Chief Justice John Roberts Jr. and Samuel Alito Jr. can be every bit as dismissive, Stephen Breyer can be just as persistent and wordy, and Antonin Scalia can be just as critical. No, Scalia is more critical: During one argument last week, Scalia told an advocate, "The big obstacle I find with your position is that it doesn't make any sense."

The Journal provided a tally of the number of questions Justice Sotomayor "asked in the second two-week cycle of arguments this term and compared it to the number asked by Roberts and Alito, the other recent newcomers to the Court, during the comparable period early in their tenures":

As expected, Sotomayor came out on top. She asked 146 questions during the 13 November arguments this term, by NLJ's count, for an average of 11.2 questions per argument. Roberts came next, asking 110 questions during 11 arguments in the November cycle of 2005, for an average of 10 questions per argument. As for Alito, he asked only 45 questions in the 13 March 2006 arguments, for an average of 3.5 per argument.

I suppose Justice Sotomayor is taking a more hands-on approach than Justice Thomas, who thinks his colleagues talk too much. Check out the article.

Is Justice Sotomayor Really Diverse?

I'll be honest--I was happy to see Justice Sotomayor get the nod, and confirmation, to SCOTUS as she obviously brings many levels of diversity to the Court. This, in my opinion, is wonderful. It is essential that the Justices of this nation’s highest court have the experiences necessary to adequately address a wide range of legal issues.

My emphasis on diversity is largely attributed to my belief that all judges, to varying extents, practice judicial activism. Everyone, even the strictest textualist, has his/her legal analysis shaped by his/her policy views in some, however remote, manner. Like it or not, the policy views of the Justices drastically affect their constitutional interpretation. Therefore, due to the pervasiveness of judicial activism, it’s imperative that the Court be comprised of legal scholars with varying backgrounds so as to ensure that one set of policy views does not guide the Court’s legal analysis. A homogeneous Court is not ideal for this country.

In addition to being a brilliant legal mind, Jusice Sotomayor brings a truly unique background to the Court. From her gender and ethnicity to her impoverished childhood, Justice Sotomayor’s appointment has helped ensure that the Court be anything but homogeneous, and this should be applauded.

However, Justice Sotomayor lacks diversity in one key area: her legal education. She graduated from Yale Law School in 1979. Justice Sotomayor’s Yale Law pedigree means that eight of the nine current Justices attended Harvard or Yale Law School (granted, Justice Ginsburg transferred to Columbia after her first year at Harvard). It may seem trivial to dwell on such an issue. After all, Yale and Harvard are the nation’s preeminent law schools and it only makes sense that the Justices possess the most accomplished educational backgrounds. However, when one understands that policy views play a vital role in the Justices’ legal analysis, it has to seem a bit odd that so many Justices received their legal training (or legal indoctrination, if you will) at the same institutions. Seven of the eight current Justices who attended Harvard or Yale Law School graduated in the ‘60s or ‘70s, meaning that they were likely taught by many of the same professors. These professors undoubtedly played a role in molding their legal minds.

I’m not arguing that the appointment of the next Justice come from a tier three law school for the sake of diversity. I merely think that too much emphasis is put on a Harvard or Yale Law pedigree, particularly by the media. Although Justice Sotomayor is extremely deserving of her appointment, it’s important to remember that there were several other equally impressive potential nominees that did not possess the Harvard/Yale Law pedigree. See, e.g., David Tatel (Chicago ’66); Diane Wood (Texas ’75); Leah Ward Sears (Emory ’80); Kim McLane Wardlaw (UCLA ’79); and Margaret McKeown (Georgetown ’75).