I am Justice, hear me roar

By MICHAEL KIRKLAND  |  Oct. 11, 2009 at 2:15 AM
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WASHINGTON, Oct. 11 (UPI) -- Justice Ruth Bader Ginsburg's first couple of weeks on the U.S. Supreme Court in 1993 were almost too painful to watch.

After a brilliant career as an attorney -- as a lawyer for the American Civil Liberties Union she literally argued the concept of gender discrimination into law in a series of cases before the Supreme Court -- and as a U.S. appellate judge in Washington, Ginsburg appeared awkward and sometimes abrupt on the high court bench.

Her questions from the bench often seemed to interrupt other more senior justices, even fellow liberals like Justice David Souter, who showed their displeasure with a quick stiffening of shoulders and a scowl. She appeared to have no rhythm during argument, no instinct for when she could join in.

The situation was exacerbated by her relations with the media, which she kept at arms length except for The New York Times. For the first few days of Ginsburg's tenure, senior males in the Supreme Court press room gossiped about her lack of manners and the trouble she was having.

Ginsburg, of course, eventually figured it out. Now she's as smooth as any member of the high court, on the lookout for her chance to ask a question from the bench. She even smiles when women are sworn in to the Supreme Court bar.

By all accounts, the beginning of Justice Sonia Sotomayor's tenure on the high court -- succeeding the retired Souter -- has been much smoother. Not that she has been shy about asking questions from the bench, perhaps taking a cue from retired Justice Sandra Day O'Connor, the first woman tapped for the Supreme Court.

O'Connor said earlier this month when she was on the high court she always tried to ask the first question at the start of an argument, USA Today reported, "because I never would get back in if I didn't."

She stuck to her policy with a vengeance. O'Connor would sometimes break in and ask a question before a lawyer could get a word out.

Though Sotomayor was reticent during an unusual rehearing in a campaign finance case before the start of the 2009 term on the first Monday in October, during regular argument Oct. 5 she appeared determined to be a full participant from the get go.

A number of observers confirm she held her own during argument. Though he can often dominate an argument, conservative Justice Antonin Scalia found himself almost bested by the new kid on the block.

"Sotomayor peppered the lawyers with questions in a pair of cases, joining with Justices Antonin Scalia and Ruth Bader Ginsburg during the oral arguments," the Los Angeles Times reported. "Together, they left the other justices sitting in silence for much of the time."

Under the headline "Sotomayor Takes Active Role on Court's First Day," The Washington Post reported: "Sotomayor displayed no reticence on the first day of her first term on the court; in the two cases on the docket, she asked as many questions and made as many comments as Chief Justice John G. Roberts Jr. The only sign of her newness was that she at times forgot to turn on her microphone before posing a question."

The Wall Street Journal ran a story on its blog under a headline saying "Soto Chatty on Court's First Day; Is a Rivalry Building with Scalia?"

The Miami Herald, reporting on Sotomayor's first day, said, "In just an hour, the court's newest justice asked more questions than Justice Clarence Thomas asked over the course of several years."

Interestingly, the issue of whether a male justice is "chatty" rarely is discussed in the media.

Some of the nine justices, such as the chief justice or Justice John Paul Stevens, 89, have no trouble asking questions and generally get a respectful silence from their peers when they do. Both have a gentle and polite style.

Justice Stephen Breyer waits for his turn to ask questions late in an argument, and always tries to turn the discussion to a point of logic or law instead wandering off into tangents. Justice Samuel Alito, though not as aggressive as Scalia, can ask questions on his own or follow along in Scalia's wake.

Justice Anthony Kennedy usually gets in his questions easily; under the current makeup of the court, with four consistent conservatives and four consistent liberals, he's often the swing vote.

Scalia seems to find plenty of opportunity to ask questions simply by using the force of his personality.

Thomas asks questions so infrequently that when he does, heads bob up all over the courtroom to see who's speaking. He once explained his philosophy in a private conversation, and has said the same thing publicly: If the justices are constantly interrupting from the bench, how can a lawyer make his or her argument?

But other members of the high court privately have conceded the obvious: The justices have thoroughly read the briefs filed by the opposing parties and those supporting them before a case is ever heard in the courtroom, and know what the attorneys are going to say. Argument before the high court is sometimes just an opportunity for the justices to argue with each other, using questions from the bench as a prop.

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