May 20, 2009

PAUL MIRENGOFF: The Testiness Test:

Aggressive questioning of advocates at oral argument is hardly a vice; often it is a plus. Naturally it’s better for judges not to get testy with the lawyers, and certainly the lawyers should be permitted to answer. But judges are human and come with varying demeanors. This variation is evident, for example, on the current Supreme Court.

Nothing I have read about Sotomayor’s demeanor and questioning at oral argument remotely suggests that this set of concerns makes her an objectionable nominee. There really shouldn’t be a “niceness” test for judges and Justices, and judicial temperament in an appellate judge should be measured almost exclusively by what the judge writes in opinions, not by how he or she questions from the bench.

Well, lawyers get unhappy with judges suffering from “black robe fever,” but that’s really only a severe problem in trial-court judges. Plus, this take: “Really, does anybody care if lawyers are intimidated?”

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