The Judge Sotomayor I've Faced

Her questioning is tough and fair, demanding and acute.

FLOYD ABRAMS

Having argued cases before Judge Sonia Sotomayor on a number of occasions, I have been struck by the assertion by some lawyers that her questioning has been too harsh, even abrasive. True, Judge Sotomayor once described herself in a speech as a "bear on the bench." And her questions can lead some lawyers to wish they had been quizzed in a far more cuddly manner.

But in my experience her questions are tough and fair, demanding and acute. One could say worse things about a judge.

Consider two of the cases I have argued before her. One arose after a jury had been chosen in federal court to hear accusations that a prominent Wall Street investment banker, Frank Quattrone, had obstructed justice. Days before Mr. Quattrone's trial commenced in April 2004, a state court judge in another widely publicized case ordered a mistrial after two New York newspapers published the name of (and much critical and personal commentary about) a juror who'd behaved in a manner that led many to think she favored the defendant. Concerned that the same might occur in his court, the federal judge in the Quattrone case entered an order barring the press from publishing the name of any juror.

Associated Press

President Barack Obama and Supreme Court nominee Judge Sonia Sotomayor

Well-intentioned as the judge was, his action ran directly into a First Amendment wall. The order was not only a prior restraint on the press, and thus very likely unconstitutional. It also barred publication of juror names already referred to in open court. If anything, this was an even clearer basis for the Second Circuit of Appeals in New York to strike down the lower court's ruling. Many cases had held that what occurs in a public court is public property, and that the press may not be punished for publishing it.

I pressed the latter point in my oral argument on behalf of a number of press organizations. This was, I said, one of the rare legal rules that were truly absolute.

Judge Sotomayor quickly responded with a series of questions about whether I really meant that the rule was absolute. Yes, I said, I meant it.

What if, she asked, there was some emergency that required a brief halt on publication and to do otherwise would cause grave harm? If the information was already revealed in open court, I said, neither the press nor anyone else could be prevented from revealing it.

Suppose, she said, a hired mob assassin stood up in open court and announced that 20 minutes later a particular person would be killed if the information were made public. Did I really mean that even in that circumstance the courts were without power to act?

Good question. Too good. I paused, concerned that I was wearing out my welcome by taking what increasingly seemed (because of Judge Sotomayor's questions) a far too extreme position.

I made a last try. If that occurred, I said, you could lock the doors of the courtroom to keep the press and everyone else from leaving, but you could not enter an order barring them from publishing what they had heard in court.

She looked at me in a bemused way. I looked away and started talking about something else.

We won the case a few weeks later. Judge Sotomayor's opinion concluded that the order barring publication of the juror names was unconstitutional because it was a prior restraint on speech and because the information had been revealed in open court.

Then she added two elegant lines. "We need not address what exceptional circumstances, if any, could justify a departure from the doctrine barring restrictions on the publication of information revealed in open court. It suffices to hold that the record is devoid of facts that could justify creating such an exception in this case."

Another encounter was in the 1999 Brooklyn Museum Case, arising out of then Mayor Rudolph Giuliani's efforts to strip the museum of all city funding and evict it from its home because it refused to remove a painting the mayor found offensive.

The questions Judge Sotomayor asked the city's lawyer were the judicial equivalent of hard left jabs in a boxing match. The U.S. Constitution generally bars sanctions against speakers based on their viewpoint. So she asked the lawyer:

"I'm still having difficulty understanding how this is not viewpoint discrimination. Please explain to me what the difference between this is and viewpoint discrimination by a state actor. There's a legion of Supreme Court cases holding that viewpoint discrimination can't be upheld."

And then:

"Give me an example of what is impermissible viewpoint discrimination."

Judge Sotomayor was no easier on me. She pressed me hard on my contention that the museum needed an injunction to protect it against the mayor. She pointed out that if we won the case the museum would get back all the money Mr. Giuliani had withheld. She required me to concede that the museum would suffer no immediate financial hardship if there was no injunction. She asked a series of increasingly difficult questions testing my contention that the case could be in federal court in the first place.

We never had a ruling in the Brooklyn Museum case, since Mr. Giuliani threw in the towel before the court could rule and abandoned his efforts to pressure the museum to remove the painting. But hardball questioning of both sides was precisely what good judges do.

Long before Judge Sotomayor was appointed a federal appellate judge, the single most honored and esteemed member of the U.S. Court of Appeals was Learned Hand. Routinely described as the single greatest American jurist never appointed to the Supreme Court, Hand could terrorize counsel who appeared before him.

When counsel made an argument Hand thought was inadequate, he was notorious for turning his chair around so his back faced the hapless lawyer who was arguing. Hand's questioning, his biographer wrote, led lawyers "to blanch and shake." That's how a bear in a courtroom behaves.

Mr. Abrams is a partner in the law firm of Cahill Gordon & Reindel LLP and the author of "Speaking Freely: Trials of the First Amendment" (Viking, 2005).