By Robert Barnes and Paul Kane
Washington Post Staff Writers
Friday, July 17, 2009
Perhaps it is because Sen. Lindsey O. Graham is the only Republican on the Senate Judiciary Committee who said openly that he was considering supporting Judge Sonia Sotomayor. Perhaps it is because he said that only a "meltdown" would stand between her and a seat on the Supreme Court. Perhaps it is because he said that some of the speeches she has given "bugged the hell out of me."
But whenever the South Carolinian spoke during Sotomayor's four days of confirmation hearings, senators stopped fiddling with notes or talking to staff members and instead closely watched and listened. The exchanges between the two -- Graham's sorghum drawl and Sotomayor's South Bronx responses -- were the most anticipated of the committee's work.
Graham, a leading conservative who was Sen. John McCain's top Senate backer in his 2008 presidential campaign, has been a pivotal character throughout the confirmation hearings. He noted his support of McCain early on but also said "elections matter." He openly pondered whether he should support President Obama's first Supreme Court nominee.
Graham is considered a bellwether for how large a majority of the Senate will vote for her. His support could lead the way for other Republicans to follow, and Sotomayor could be confirmed in the manner of Chief Justice John G. Roberts Jr., who received 78 "aye" votes in September 2005. A "no" vote from Graham, and Sotomayor's confirmation could be more like that of Justice Samuel A. Alito Jr., who garnered 58 votes four months after Roberts.
Graham's questioning has its critics. While Sotomayor has patiently answered his questions and remained impassive during his criticism, commentators questioned whether he has tried to provoke the meltdown he theorized about. On Wednesday, after reading a list of complaints anonymous lawyers had made about her style on the bench, Graham advised that it may be time for "self-reflection."
The following is an edited portion of their back-and-forth yesterday morning, starting with a discussion about how the Supreme Court decides what is a fundamental right.
GRAHAM: Now, during your time as an advocate, do you understand identity politics? What is identity politics?
SOTOMAYOR: Politics based simply on a person's characteristics, generally referred to either race or ethnicity or gender, religion. It is politics based on . . .
GRAHAM: Do you embrace identity politics personally?
SOTOMAYOR: Personally, I don't as a judge in any way embrace it with respect to judging. As a person, I do believe that certain groups have and should express their views on whatever social issues may be out there. But as I understand the word "identity politics," it's usually denigrated because it suggests that individuals are not considering what's best for America.
. . .
GRAHAM: Do you believe that your speeches properly read embrace identity politics?
SOTOMAYOR: I think my speeches embrace the concept that I just described, which is, groups, you have interests that you should seek to promote, what you're doing is important in helping the community develop, participate, participate in the process of your community, participate in the process of helping to change the conditions you live in.
I don't describe it as identity policies, because -- politics -- because it's not that I'm advocating the groups do something illegal.
GRAHAM: Well, Judge, to be honest with you, your record as a judge has not been radical by any means. It's, to me, left of center. But your speeches are disturbing, particularly to -- to conservatives. . . . Those speeches to me suggested gender and racial affiliations in a way that a lot of us wonder: Will you take that line of thinking to the Supreme Court in these cases of first precedent?
. . .
GRAHAM: You have, I think, consistently, as an advocate, took a point of view that was left of center. You have, as a judge, been generally in the mainstream.
The Ricci case, you missed one of the biggest issues in the country or you took a pass. I don't know what it is. But I am going to say this, that, as Senator Feinstein said, you have come a long way. You have worked very hard. You have earned the respect of Ken Starr. And I would like to put his statement in the record. And you have said some things that just bugged the hell out of me.
SOTOMAYOR: May I . . .
GRAHAM: The last question on the "wise Latina woman" comment. To those who may be bothered by that, what do you say?
SOTOMAYOR: I regret that I have offended some people. I believe that my life demonstrates that that was not my intent to leave the impression that some have taken from my words.
GRAHAM: You know what, Judge? I agree with you. Good luck.