Sotomayor -- A Pain the Butt and a Real New Yorker

Supreme Court nominee Judge Sonia Sotomayor, 54, is a dyed-in-the-wool New Yorker: She grew upin public housing in The Bronx, arguably the city's least glamorous and most gritty borough; she is a "cultural Catholic," meaning she was born into the faith but is not a regular church-goer. Divorced and childless, she typically gets home between 9:30 or 10 p.m. and subsists on take-out (because who wants to cook and clean up that late?). She is a fan of the Bronx Bombers, enjoys shopping, going to theater and dance performances. She's gutsy, too -- she once accompanied police on a raid of a suspected counterfeit goods outfit in Harlem. And, last but not least, she can be royal pain in the butt. In other words, she's a lot like many of the women The Stiletto knows (a few of whom also grew up in The Bronx, or another of the outer boroughs).

The New York Times explores this last, not atypical New York trait and looks at who has got a problem with it -- in other words, how her judicial temperament could help or hurt her working relationships with the eight Supreme Court Justices who may soon be her colleagues.

Here's what the paper reports:

She is known as a formidably intelligent judge with a prodigious memory who meticulously prepares for oral arguments and isn't shy about grilling the attorneys who appear before her to ensure she fully understands their arguments.

But to detractors, Ms. Sotomayor's sharp-tongued and occasionally combative manner -- some lawyers describe her as "difficult" and "nasty" -- raises questions about her judicial temperament and willingness to listen. ...

Judge Sotomayor's colleagues on the United States Court of Appeals for the Second Circuit say her tough and direct questioning reflect engagement and, sometimes, an attempt to persuade her colleagues.

Those same qualities, coupled with a gregarious personality, they said, make her a powerful force behind the scenes, where she has used her mastery of the cases to change minds, improve opinions and forge consensus.

The issue of judicial temperament also came up 22-years-ago during Robert Bork's confirmation hearing -- but it's a bit different this time, reportsMcClatchy Newspapers:

White House officials consider Sotomayor's take-no-guff temperament a sign that she can hold her own among the Supreme Court's aggressively conservative justices, starting with Antonin Scalia. They also know, however, that too much feistiness can undercut coalition building. Quietly, they surveyed Sotomayor's appellate court colleagues about her temperament, among other things.

With Bork, said David Yalof, a University of Connecticut associate professor, judicial temperament "was a proxy" for doubts about Bork's ability to empathize with the poor and underprivileged. With Sotomayor, by contrast, critics suggest that it's the actual temper that's the issue.

Sotomayor's story will likely have a different ending than Bork's, but by a quirk of the high court's calendar the Senators who will vote her up or down will have highly relevant information about how well she will mesh with the other Justices.

By the end of the month -- well before her confirmation hearing is expected to get under way -- the Supreme Court is expected to offer its take on a Sotomayor appellate court ruling in a civil rights lawsuit involving several white (and one Hispanic) firefighters who were denied promotions by the city of New Haven, Conn., after getting higher scores on a test that no blacks had passed. Here's how the case was reportedthe Los Angeles Times:

Sotomayor was part of a three-judge panel that, in a two-paragraph opinion, rejected an appeal by white firefighters from New Haven., Conn., who contended that they were victims of racial discrimination when they were denied promotions. ...

The high court is thought to be divided on the case, which pits two provisions of the Civil Rights Act against each other.

On the one hand, the act says no employee may be discriminated against because of his or her race, sex, religion or national origin. On the other hand, the law also says an employer can be sued for using a hiring or promotional standard that has a "disparate impact on the basis of race," unless it can be defended as a "business necessity."

The white firefighters pointed to the first provision and said they were discriminated against when the city decided not to use the test scores for awarding promotions.

The city's lawyer pointed to the second provision and said New Haven could be sued by black firefighters who said the test had a "disparate impact" on them and their chances for promotion. Could the city defend itself, he asked, by proving that a paper-and-pencil test was the best and only reasonable way to decide who gets promoted to lieutenant or captain?

Reading the majority and minority opinions in the case will provide a rare look into the crystal ball to predict whether and how Sotomayor's judicial philosophy and legal reasoning will influence her high court colleagues before she joins their ranks - as well as whether the court's most junior justice will be successful in persuading Justice Anthony Kennedy to swing her way on a consistent basis.

The Stiletto writes about politics and other topics at thestilettoblog.com.