Friday, May 8, 2009

Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"

In an effort to defend his harsh "evaluation" of Judge Sonia Sotomayor's temperament, Jeffrey Rosen cites the Almanac of the Federal Judiciary. The AFJ, published by Aspen Press, contains judicial biographies and summaries of attorney comments regarding individual judges. Some critics have argued that AFJ lawyer comments can reflect racial and gender biases. I agree.

Tough Women Are Bitches, Tough Men Are Impassioned Athletes
A persistent and ubiquitous gender stereotype portrays smart and aggressive women as domineering, mean, nasty bitches. This stereotype explains much of the negative treatment that Hillary Clinton received during her presidential campaign. Media commentators -- including so-called liberals such as Keith Olbermann and Chris Matthews -- described Clinton with sexist language that would likely result a finding of sex discrimination if companies used it to evaluate women employees.

With respect to lawyers, statistics show great disparities that correlate with gender. Although women are just under 1/2 of the summer associates and associates at law firms, they are just 17% of partners. Women hold roughly 1/4 of federal judgeships, and only one woman sits on the Supreme Court. Considering the impact of race and gender status together reveals even greater disparities. Women of color are virtually unrepresented as partners in the nation's law firms and as members of the judiciary. This is the context in which Sonia Sotomayor and all other female lawyers of color exist.

Almanac of the Federal Judiciary: The "Tempermant" Issue
Most of the early reviews on Sotomayor concede that the summa cum laude Princeton and Yale Law School graduate is smart. The worst reviewers, however, say that she lacks judicial temperment. Rather than being firm, but flexible, detached but engaged, her detractors describe her as a firery Latina tempest waiting to knife and brutalize lawyers in the courtroom. A survey of lawyer comments from the AFJ report on Sotomayor confirms this view of Sotomayor among some lawyers:
Sotomayor can be tough on lawyers, according to those interviewed. "She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive--not very judicial. She does not have a very good temperament." "She abuses lawyers." "She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like". . . .

"She dominates oral argument. She will cut you off and cross examine you." "She is active in oral argument. There are times when she asks questions to hear herself talk." "She can be a bit of a bully. She is an active questioner." "She asks questions to see you squirm. She is very active in oral argument. She takes over in oral argument, sometimes at the expense of her colleagues." "She can be very aggressive in her questioning." "She can get harsh in oral argument." "She can become exasperated in oral argument. You can see the impatience." "You need to be on top of it with her on your panel."
The comments, which are racially and sexually coded, remind me of the "negative" description of Hillary Clinton as ambitious. I have never heard ambition stigmatized in a male -- and certainly never in a presidential candidate. But commentator after commentator portrayed Clinton's ambition as a negative quality, and they seemingly never realized how their language rested on stereotypes. For Sotomayor, being a sharp interrogator and requiring lawyers to be "on top of it" are negative qualities. These traits are not negative in most men, certainly not white men.

Some lawyers, however, perceive Sotomayor's "toughness" as a positive judicial quality:
Lawyers said Sotomayor is very active and well-prepared at oral argument. "She is engaged in oral argument. She is well-prepared." "She participates actively in oral argument. She is extremely hard working and always prepared."
Compare the lawyer responses to Sotomayor with the AFJ comments on Justice Scalia -- whom many lawyers consider a tough questioner as well. While lawyers negatively describe Sotomayor's toughness, in Scalia, toughness receives praise, if not awe. Scalia's hazing of lawyers is just part of the understood fun among the brotherhood of lawyers. Although reviewers describe Scalia as tough, this does not make him a dangerous "out-of-control" she-judge. Notice the sporting and friendly hazing metaphors in the AFJ description of Scalia:
Never utter the words "legislative history." If you do, chances are Scalia will interject with a ridiculing harangue that makes it clear he views legislative history as poppycock. Legislative debates are often contrived and can't trump the actual words of the statute, Scalia insists. But even if you play it safe, you can expect tough, persistent questioning from Scalia, often delivered with an almost gleeful lust for the sport of jabbing and jousting with advocates before him. And Scalia is an equal-opportunity jouster; even when his position seems obvious, Scalia will be just as hard on the lawyer he agrees with as the lawyer he'll oppose. Ever the law professor, Scalia will sometimes ask questions with no clear relevance, just to see if you are on your toes. In a now-legendary exchange during arguments on a federal rule that barred the advertising of the alcohol content of beer, Scalia asked a lawyer for Coors to define the difference between beer and ale. The lawyer, the late Bruce Ennis, answered without missing a beat, to the amazement of justices and spectators alike, and Coors won the case. But Scalia can be nasty, as well. When a lawyer once paused too long before answering his question, Scalia said sharply, "You have four choices, counselor: "Yes," "No," "I don't know," or "I'm not telling." But the most important advice on how to sway Scalia at oral argument or in brief-writing is to buy his new book. . . .[One] tip: Don't use the kitchen sink strategy of throwing at the Court every conceivable argument your legal team can think up. Pick your best three, at most, Scalia and Garner advise. "Arm-wrestle, if necessary, to see whose brainchild gets cut."
In Scalia, toughness is positive; in Sotomayor, it is nonjudicial. If Scalia asks irrelevant questions, he is just being a dutiful "law professor" trying to hold the attention of his class. If Sotomayor does the same thing, she is just interested in hearing herself talk. When Scalia duels harshly with litigants, the "spectators" watch in amazement. If Sotomayor asks tough questions, she is seen as difficult, temperamental, and excitable. The disparate treatment is too dense to deny.

Throw Away the AFJ
Instead of using the AFJ's abrasive and biased commentary to evaluate judicial candidates, for over 50 years presidents have consulted the rigorous judicial evaluations prepared by the American Bar Association. When President Clinton nominated Sotomayor to the court of appeals, a "substantial majority" of the ABA judicial committee gave her the highest ranking of "well qualified," while a minority gave her the intermdiate "qualified" rating.

Unlike the AFJ, the ABA interviews a broad cross-section of lawyers, law professors, judges and other people who have professional contacts with the judicial candidate in order to construct an accurate picture. I strongly encourage people who care about gender and racial equality to deconstruct the gender-coded "temperament" argument and to ignore the AFJ and Rosen's citation to it.

Note: I found the AFJ on WESTLAW, which is a paid legal research database. I cannot link to it. If someone has free links to the AFJ sections on Scalia and Sotomayor, please feel free to post them in the comments section.

Links for all Sotomayor-related materials on one convenient page: Sonia Sotomayor on Dissenting Justice


Anonymous said...

sotomayor's AFJ pages at:

Darren Lenard Hutchinson said...

Thanks, Anonymous. Now, if we get Scalia's -- task complete.

Anonymous said...

Here's something worth exploring: Why is it that Kathleen Sullivan (who famously failed the bar exam) and Elena Kagan (who was an undistinguished student during her first semester of law school) are widely regarded (by Jan Crawford Greenberg, at least) as "brilliant" and smart, while Sonia Sotomayor (a summa cum laude graduate of Princeton and a member of the American Philosophical Society) is derided as an intellectual lightweight? This whole episode makes me sick to my stomach. Unfairly maligning a fair good jurist based on nothing more than gossip and stereotypes...

Stray Yellar Dawg? said...

Yes,"Anonymous." It makes me sick too.

So much so that I am quoting your query in my blog today.

If you have a link to the Greenberg statement, I'd like to see it!

Darren Lenard Hutchinson said...

Stray Yeller and Anonymous: Great analysis. I think I saw something about the Greenberg comments on Media Matters.

Anonymous said...

This is great commentary by Darren and it certainly did not escape many of us that one of the major causes for HIllary Clinton's primary-determining media bashing was misogynist "journalism". I can just imagine what Keith Olbermann (take HC to the shed and finish her off)and Chris Matthews (leg-thrilling to the sight of Obama)would say about the jurisprudential talents of Sonia Sotomayor. The only hope Obama has of redeeming himself of his ignominiously vacuous stand on gay rights and his own misogyny ("Periodically Hillary feels *down* and starts launching attacks against me..." and his finger flip-offing of HRC during the primary) is to appoint either a gay or a progressive AA woman to the Supremes. If he were to appoint just another republican clone to pursue his comical "post-partisan" ambitions he'd be exposed for the arrogantly clueless clown he may truly be. But then, again, we'd have to forget how he climbed up the slippery ladder of success by eliminating his female superior antagonists beginning with his own mentor Sen. Alice Palmer in Chicago in '96. The Supreme Court appointment will be the true test of this Bush III macho-clown presidency.

Anonymous said...

Dear Mr. Hutchinson: You write: "Instead of using the AFJ's abrasive and biased commentary to evaluate judicial candidates, for over 50 years presidents have consulted the rigorous judicial evaluations prepared by the American Bar Association."

Nope. Geo. W. kicked the ABA out of his Justice Department in 2001 and paid no more attention to it for the rest of his term, for all the howling the legal establishment did. This didn't stop that gang of buttinskies from making their pronouncements---and being roundly denounced for doing so. Don't believe me? Here you go. Specifically from this link, there's this gem:

""The ABA ratings do not take into account whether a judge's judicial philosophy and views are in or out of the broad mainstream," said Sen. Charles Schumer, D-N.Y"

That's Chuck on Sam Alito. Schumer no more believes in the ABA ratings than I do. What puzzles me is why you believe in them? You object, rightly, to the AFJ's reliance on anonymous interviews with clerks i.e. errand boys still rubbing their backsides from being kicked around. Is the ABA's process any more transparent? Hardly; you can't even find out why one of Alito's examiner's declined to vote. Why believe the ABA instead of the AFJ? Because the ABA gang wear suits, drink white wine, and go to the opera, as opposed to the beer swilling, leisure suit wearing, bowling league gossip columnists of the AFJ? The notion that the ABA is dispensing disinterested superior wisdom is too absurd to be taken seriously. When Robert Bork went up before the Senate the ABA developed schizophrenia and had a hopelessly split verdict of "well qualified" and "not qualified." It's a sign of the perceptual anesthesia that their ratings are still taken seriously, instead of being thrown on the compost pile. Open up the process and they will be taken seriously. The comeback that "we want honest answers and candidates for the Federal Bench are vindictive and will retaliate against those who tell the truth about them," is a swell commentary on the state of the federal judiciary. Why do you suppose the AFJ came into being except as a reaction to the whitewashing of the ABA ratings?

I'd be interested in Darren Hutchinson's criteria for what makes a good judge. I confess I can't think of any that are reliable. Studying the opinions is problematic as no one can be sure if the candidate wrote them or tossed them at the clerks to write on his way to a the lateest conference on foreign law and why it is superior to American law. Experience on benches would seem to be a good indicator, (Holmes, Cardozo) but experienced judges have been flops on the Supreme Bench (Marshall, T., Minton, Whitaker.) In the past, consideration has been given to geography, with conspicuous lack of result. Now identity groups are being touted, but they run into trouble. Witness your silence to my suggestion that The One put up Janice Rogers Brown to the Supreme Bench. No, the criteria will continue to remain: Does s/he vote "right?" This criteria has been eminently successful for judges on the left, and a gigantic disaster for those on the right. Meanwhile the judicial branch continues to grow fatter and fatter, more and more clerks, the better to keep intramural feuds going, while doing less and less (see the number of opinions issued by the Supreme Court in the last decade compared to, say the 1960s or 1920s) and doing less and less with conspicuously ill result. The latest example of the Supreme Court's idiocy and ineffectiveness: the D.C. trial courts are swamped with terrorist cases thanks to Kennedy's bright-eyed notion that the courts gotta step in and see that procedure is followed. The circus this will genertae will make Barnum jealous. Even The One is having second thoughts, finding out that military trials have their virtues i.e. they will actually do something as opposed to employing millions of left lawyers bawling for the utmost in procedure so the billable hours will pile up.

Finally, I reiterate that what is being done to Judge Sotomayor is just standard practice. It's just that it is usually done on right-leaning judges i.e. Bork. Your commenter Mary is a fine example of the rage this is generating. My bet is she shrieked with glee at the assault on Bork (I gave out a snicker or two myself), and only roars with frenzied rage now that the guns of the left are trained on women. Sadly for her, in the calculus of identity politics race trumps gender as Hillary discovered. For us on the right, this is a great show, full of laughs. To be sure, such antics are very bad for the nation. But elections do have consequences, and at the moment, there's not much the Right can do about it(having blown numerous chances in the last eight years.)

Sincerely yours,
Gregory Koster
(not of CUNY)

Darren Lenard Hutchinson said...

Greg -- you said a lot, as usual.

One thing that stood out was your comment about the ABA rankings. From 1952 until 2001, presidents consulted the ABA judicial evaluations. That includes Nixon, Bush I, and Reagan. Bush II is the only one who did not. Although you may believe that Bush II has more insight than all of the other presidents before him, I do not. I suspect that most Americans do not as well.

As for Schumer's comments that the ABA rankings do not take ideology into account, that is what makes them the most trustworthy! The ABA gave its highest rating of "well qualified" to Scalia, Alito, Roberts, and Kennedy. Schumer actually opposed exclusive reliance on the rankings because they do not look at ideology. By citing Schumer, you are proving my point that the rankings provide the best objective measure of a judge. While a politician can take ideology into account, the ABA should not.

I linked to the ABA website, which lists the factors that go into the evaluations. That will give you a sense of what I believe represents sound analysis of a judge. Rosen has not provided anythign close to sound analysis.

Furthermore, you raise Janice Rogers as a scarecrow argument about identity politics. From the very beginning of the nation's history, president's have considered ideology when making judicial appointments. They have also considered the ideology of the Court. Certainly you have heard of the decision in Marbury v Madison. The background facts of the case demonstrate an effort to "pad" the judiciary with federalists. Jefferson suspended the SCT when he got in office to prevent it from overruling some of the early actions by his administration. Identity politics is only one component of judicial appointments.

Finally, what is happening to Sotomayor is not "standard" practice. There is certainly precedent for it, but she is not even a nominee. Compare her treatment with the approach to Kagan, Karlan, and Wood, and you will see it is not "standard" practice.

PS: Reagan was idiotic for nominating Bork after the Saturday Night Massacre! Although the confirmation mess was embarassing, presidents must be savvy.

Math_Mage said...

I don't believe the coded language is nearly as one-sided as Dr. Hutchinson believes. I present as Exhibit A the comment left by Mary:

--"The only hope Obama has of redeeming himself of his ignominiously vacuous stand on gay rights and his own misogyny ("Periodically Hillary feels *down* and starts launching attacks against me..." and his finger flip-offing of HRC during the primary) is to appoint either a gay or a progressive AA woman to the Supremes. If he were to appoint just another republican clone to pursue his comical "post-partisan" ambitions he'd be exposed for the arrogantly clueless clown he may truly be. But then, again, we'd have to forget how he climbed up the slippery ladder of success by eliminating his female superior antagonists beginning with his own mentor Sen. Alice Palmer in Chicago in '96. The Supreme Court appointment will be the true test of this Bush III macho-clown presidency."

Where women get "aggressive", "nasty", "out of control", and "difficult", men apparently get "arrogant", "misogynistic", "macho", and "clown"--words that I doubt are are used nearly as often on the fairer sex.

Code words exist on both sides of the gender divide, and may reflect personal like or dislike as as much as stereotyping. Perhaps the difference in language used to describe Scalia and Sotomayer reflects an actual difference in temperament, or in the personal impression they make, rather than a general bias against women in the AFJ. Without a broader analysis of possible disparity in the way the AFJ treats male and female justices in their reports, I'm not sure how to tell the difference.


Math_Mage said...

Sorry for the double-post, but glancing at your title made me realize my point can be made more succinctly:

Tough women can be "bitches", or they can be "sharp". Tough men can be "bastards", or they can be "impassioned athletes". How do you tell when one word is chosen out of personal dislike and/or legitimate reason, and when one word is chosen out of bias?

Darren Lenard Hutchinson said...

Math Mage, this is not scientific, but in law, it's rare that toughness is seen as a pejorative concept in male judges, especially with respect to oral argument. Instead, tough male judges get the reputation for being smart and sharp, even if they haze lawyers. I also reject the language "bitch" as a legitimate way to describe a woman. I suspect that it evolved to explain men's discontent with aggressive women. The term "bastard" does not have the same level of negativity. A bastard is still human.

Darren Lenard Hutchinson said...

Math Mage - I responded to your second post first. But on the first one - there are a number of studies of lawyer comment sections from a number of states, and they persistently show gender and racial bias. I have not examined studies on the AFJ, but I was on a law blog where a professor complied informal results showing that the 40 percent of judges who received the negative "temperament" score were women, even though women are only 25 percent of the federal judiciary.

I believe I stated it in my earlier post, but here's why I reject the "maybe they are just bitches" comment. First, that term was created as a stereotype, to condemn toughness in women. So, using it as some to express some perceived "truth" about women is problematic. Second, toughness is really not stigmatized among male judges. I just do not recall that being too much of a problem - certainly not to the same degree as with women. Many male judges - and law professors - in fact become famous for the hazing and "no-nonsense styles.

Your post seems to question the existence of gender bias. You view it as the exception, rather than the norm. I think that unless you consciously fight and think about and fight bias, then the norm pulls people toward unconscious bias. Denying its existence does not permit you to fight it.

AlanDownunder said...

A fat blob like Scalia should thank the heavens that he's not female.

Anonymous said...

Having seen Scalia at work at a moot court competition a few years ago, where he basically took over and refused to let the student on the "wrong side" of the argument present her case, I can see your point about the positive assessments of his style (although it didn't impress the rest of the student body).

However, could the difference also be to do with the fact that the Scalia commentators are talking about a supreme court justice? Wouldn't a better comparison would be how commentators treated a combative male circuit court judge?

Lawyers inevitably apply different standards to the supremes - they're expected to know all the answers, speak in gnostic tones and shoot laser beams from their eyeballs. If one of them habitually smites lawyers or asks irrelevant questions, it'll be talked about in reverential tones, even if strictly speaking it doesn't achieve anything.

Darren Lenard Hutchinson said...

Anonymous, I think the distinction you are trying to make is very bizarre -- since Rosen's analysis purports to speak of Sotomayor's competence to sit on the Supreme Court! And I am not sure which lawyers believe that Supreme Court justices inherently "know all the answers" versus other judges. Only nine people can sit on the court at any given time. As a result, there are many extraordinarily qualified lawyers who are sharp and have even better analytical skills than persons on the Supreme Court.

Besides, Supreme Court justices -- male or female -- do not all behave like Scalia. Roberts, for example, has a totally different style. So does Thomas -- his ideological twin (on most issues).

Anonymous said...

Let's drop the "code" phrase, so cloaked in superiority and a weak argument. It sounds like they are both assholes. Is that what we want or need? Please drop your political guard and really ask yourself would she interpret the constitution or impose her personal views. I don't want a supreme court justice that agrees with my philosophy legislating from the bench.
Rory Hession, MD

Darren Lenard Hutchinson said...

Anonymous - you say that both Scalia and Sotomayor sound "disagreeable," but his reviews are positive for similar behavior. Like professors, judges can have different styles. There is nothing wrong with that. Lawyers know ahead of time which judges they will confront in oral arguments. They know how to pepare accordingly.

As for your other comment -- not wanting someone "legislating" from the bench - that's ridiculous. Read my latest post on the felon voting case, where Sotomayor, to the dismay of conservatives, strictly followed the language contained in the statute. There is absolutely nothing in her background to suggest otherwise. And you have not cited anything that disproves this.

Anonymous said...

People who don't want so-called legislating from the bench usually don't want change. If we did not have change, since the founding of our country, we would still have slavery, women not being able to vote, etc.

This blog on Sotomayor is right on!

Darren Lenard Hutchinson said...

Anonymous: Another thing, people usually only complain about "legislating from the bench" if they disagree with the Court. Thanks for visiting.

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