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Two Wrongs . . .
President Obama's high court pick deserves the deference that Sen. Obama failed to show.

Tuesday, July 14, 2009

THE GHOSTS of confirmations past loomed over the proceedings yesterday as Supreme Court nominee Sonia Sotomayor sat for her first day of hearings before the Senate Judiciary Committee.

There was the specter of then-judge, now chief justice, John G. Roberts Jr., who in 2005 was unable to secure the vote of the junior senator from Illinois, Barack Obama. There was Samuel A. Alito Jr., President George W. Bush's nominee to the next opening on the high court, who likewise got a no vote from Mr. Obama for ostensibly favoring the powerful and wealthy. There was Janice Rogers Brown, a Bush nominee to the U.S. Court of Appeals for the D.C. Circuit; while he praised the African American jurist for her accomplishments and compelling life story, Mr. Obama declined to endorse her judicial appointment, saying "she is a political activist who happens to be a judge." And there was Miguel A. Estrada, the well-regarded Harvard law graduate and Honduran immigrant who was blocked from a seat on the D.C. Circuit by a Democratic filibuster.

Various GOP senators on the committee, including ranking Republican Jeff Sessions of Alabama and Utah's Orrin G. Hatch, cited Mr. Obama's votes against these Bush nominees. They are right to be critical; they would be wrong to imitate Mr. Obama's mistakes in the matter of the Sotomayor nomination.

We agreed with Mr. Obama's assessment of Judge Brown and urged her defeat because of her unambiguous and unapologetic use of the bench to suit her political vision. We supported confirmation of Mr. Bush's well-qualified Supreme Court nominees and strongly urged Democrats to drop their unjustified filibuster of Mr. Estrada. We believe elections have consequences, and presidents are entitled to some deference in their appointment of judges, if those presidents show enough respect for the bench to name men and women of quality. Mr. Bush was owed better than then-Sen. Obama gave him; despite that record, Mr. Obama is owed deference now.

Sen. Lindsey O. Graham (R-S.C.) yesterday offered an attractive alternative to partisan score-settling. In his opening statement, Mr. Graham outlined his concerns with Judge Sotomayor's statements about the role that gender and ethnicity should play in judicial decision-making, at one point remarking, probably accurately, that his political career would have ended had he asserted that white men would make better decisions than Hispanic women. Yet he rightly noted that Judge Sotomayor's lengthy track record may be more moderate than some critics have suggested. Most important, he acknowledged that elections do, indeed, have consequences. Mr. Graham may yet vote against confirmation for Judge Sotomayor. But if he does, it seems likely to be on the merits as he views them and not as a ploy for political gain.

Senators don't owe presidents favorable votes on their nominees. But they do owe the president, the nominee and the American people a vote based on an honest assessment of the nominee's qualities and qualifications.

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