By Dana Milbank
Wednesday, July 29, 2009
It looked bad enough that only one Republican on the Senate Judiciary Committee voted to confirm Sonia Sotomayor to the Supreme Court on Tuesday. What made the proceedings shameful, though, is that half of the senators voting no couldn't be bothered to stick around and cast their votes in person.
The clerk called out the name of Sen. Jon Kyl (R-Ariz.). "No by proxy," responded Sen. Jeff Sessions (Ala.), the ranking Republican.
Sen. John Cornyn (R-Tex.)?
"No by proxy," said Sessions.
Sen. Tom Coburn (R-Okla.)?
"No by proxy," said Sessions.
You could see why they might want to hide. Supreme Court confirmations have for years felt the strengthening tug of partisanship, but the absent Republicans voted to reject a nominee even while acknowledging that her judicial record is, as Cornyn put it, "in the mainstream."
If they had listened, they would have heard a thoughtful rebuke from a fellow Republican, South Carolina's Lindsey Graham, the lone member of the committee's minority to support Sotomayor. He looked across the table at Patrick Leahy (Vt.) and Herb Kohl and Russ Feingold (Wis.), who voted, along with 19 other Democrats, to confirm John Roberts as chief justice four years ago. "You decided to vote for a man you would not have chosen," the conservative Graham said. "I'm deciding to vote for a woman that I would not have chosen."
Why? "What I'm trying to do with my vote is to recognize that we came perilously close to damaging an institution, the judiciary, that has held this country together in difficult times," Graham said. "The law should be a quiet place, where even the most unpopular can have a shot," he added, "because there's something a little bit bigger going on in that courtroom than 50 plus one" -- the math of the Senate.
But the law, instead, is getting noisier. Sens. Orrin Hatch (R-Utah) and Chuck Grassley (R-Iowa), two veterans of the committee, never opposed a Supreme Court nominee sent by a president in either party -- until Tuesday. The National Rifle Association took the extraordinary step of warning lawmakers that it would "score" their votes on Sotomayor and punish those who vote for her.
Democrats in part have themselves to blame for this situation. During the Roberts confirmation, when 22 Democrats voted for the nominee, Democratic leader Harry Reid declared that "the president is not entitled to very much deference" in his judicial nominees. Back then, Grassley, recalling the 96 to 3 vote to confirm Ruth Bader Ginsburg in 1993, scolded Democrats for their "loyalty to their ideological and single-interest groups."
But there was Grassley on Tuesday, mechanically reading his statement of opposition, unable to pronounce the nominee's name. He called her "Soda My Ear" and "Soda My Err" before settling on "Soda My Air." Hatch, justifying his "no" vote, invoked then-Sen. Barack Obama's vote against Roberts.
The party-line opposition, inevitably, gives Obama a perverse incentive to escalate further with his next nominee: If Republicans have lock-step opposition to a nominee with a moderate record on the bench, why not nominate a left-wing equivalent of Samuel Alito?
The one thing both sides could agree on was that the hearings had been unsatisfying. Kohl protested that nominees "limit their responses and cautiously cloak them in generalities." Coburn and Sen. Arlen Specter (D-Pa.) agreed, and Feingold complained that "these hearings have become little more than theater."
The theatrics are only getting more elaborate. No fewer than four senators on Tuesday felt the need to repeat Sotomayor's rating by the American Bar Association, while Republican opponents trumped up charges against her. "I don't believe anyone should be on any court of the United States that is not deeply committed to the ideal of American justice," declared Sessions, who found his objections less in the nominee's judicial record than in three words she uttered in a speech. "It is her belief that, quote, 'a wise Latina woman . . . would more often than not reach a better conclusion than a white male,' " he said.
"I hope someone was keeping track of how many times those three words 'wise Latina woman' were quoted," retorted Sen. Dick Durbin (D-Ill.).
Sen. Ben Cardin (D-Md.) was. "I've been told by staff that there were 17 questions asked on 'wise Latina,' " he announced.
Coburn mockingly offered to "couch my words" in a way that "Senator Durbin would think would be appropriate."
Sen. Sheldon Whitehouse (D-R.I.) followed with a ferociously partisan broadside: "Their definition of justice in America -- their definition -- is just plain wrong!"
Over the white noise of charge and countercharge, only Lindsey Graham's words soared. He worried aloud about what was become of the rule of law, saying it "really concerns me that we're about to change it and make it just an extension of politics in another form."
Sessions watched his colleague with a tight grin. Hatch looked up from his copy of CongressDaily with a furrowed brow. Grassley straightened the papers on the desk in front of him.
"I base my vote on qualifications," Graham said, "and
I came away after the hearing believing that she was well qualified."
That such thinking is now heresy tells you all you need to know about the judicial confirmation process.