By Dan Balz
Washington Post Staff Writer
Tuesday, July 28, 2009 7:01 PM
President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court accomplished only part of his goal of changing the judicial confirmation process. He managed to lower the temperature of the debate without materially reducing partisan polarization.
Tuesday's 13 to 6 vote in the Senate Judiciary Committee brought Sotomayor one step closer to a seat on the high court and continued what has been a confirmation process utterly lacking in drama or suspense. Yet only one Republican, Sen. Lindsey O. Graham (S.C.), broke party lines in the vote, joining with the 12 Democrats on the panel in voting for Sotomayor.
Two notable dissenters were Utah's Orrin Hatch and Iowa's Charles Grassley. Both have records of supporting Supreme Court nominees, offered up by Democratic and Republican presidents alike, dating back many years. Their votes foreshadow what is likely to be solid Republican opposition to the first Hispanic and third female nominated to the Supreme Court.
The confirmation process has lacked suspense for several reasons. With a 60 to 40 Democratic advantage in the Senate, Sotomayor's confirmation was assured from the start. There was less suspense also because her joining the court would likely have no significant impact on its ideological balance. In replacing Justice David Souter, she will fit comfortably into the court's liberal bloc, not move the court leftward.
The process also lacked drama or fireworks because Republicans were wary of launching attacks against a Latino woman. Most went out of their way to compliment her, to praise her personal story and her accomplishments, to talk about how much they liked her personally. Their disagreements were stated respectfully.
There is some political risk for the Republicans for their near-universal opposition to a Latino nominee, given the reverses the party has suffered in the past four years among this important and growing political constituency. But most Republicans have concluded that those risks are manageable.
GOP strategist Alex Castellanos said he thinks there will be no backlash among Hispanics over this vote. He said it is "insulting that Hispanics would believe a Hispanic nominee must be approved solely because of her ethnicity and not on the merits of her achievements, impartiality and judicial philosophy."
Castellanos linked Sotomayor's philosophy to what he called Obama's strongly leftward tilt as president. In that sense, the current debate over health care offers some insight into why the Sotomayor vote in the Judiciary Committee went almost strictly along party lines.
There is general agreement that the current health-care system needs to be changed. But a deep philosophical gulf between Democrats and Republicans has prevented the two sides from finding common ground a solution. There is a similarly deep philosophical divide over the role of the judiciary, which shaped the debate over Sotomayor's nomination and has influenced the voting on both sides.
However, judicial nominations once were thought to be different -- more immune from partisan rancor -- than other issues, though they have been partisan minefields since the nominations of conservatives Robert Bork in 1987 and Clarence Thomas in 1991.
Conservative Justice Antonin Scalia was confirmed in 1986 without a dissenting vote -- 98 to 0. Even after the Bork and Thomas battles, Republicans were willing to vote for two of President Bill Clinton's nominees -- Ruth Bader Ginsburg and Stephen Breyer -- in overwhelming numbers.
Four years ago, 22 Democrats supported John Roberts's nomination to become chief justice, against 22 Democrats who opposed him. On the basis of the Hatch and Grassley votes, it is not likely that half the Republicans in the Senate will be voting for Sotomayor.
Obama was one of those 22 Democrats who opposed Roberts. He spoke about Roberts in glowing terms: as well qualified in temperament, experience and legal acumen to sit on the high court. It was Roberts's judicial philosophy that troubled him. Though he had once told a friend that, if Democrats wanted to change the courts they had to win elections, he did not give deference to President George W. Bush.
In the past, many senators have deferred to a president in his Supreme Court nominations, just as they do on Cabinet selections. That was the rationale Lindsey Graham offered in explaining his support for a judge whose record he sharply criticized during the hearings. "Elections have consequences," he said.
On the opening day of Sotomayor's confirmation hearings, Graham made note of Obama's vote against Roberts: "I can assure you that if I applied Senator Obama's standard to your nomination, I wouldn't vote for you, because the standard that he articulated would make it impossible for anybody with my view of the law and society to vote for someone with your activism and background when it comes to lawyering and judging."
Obama's vote against Roberts was an acknowledgment of the power of the liberal and conservative bases as senators weigh Supreme Court nominees. Obama was persuaded that whatever national ambitions he had would be damaged by a vote for Roberts. He knew that liberal activists would not likely forget a vote for a conservative chief justice, no matter how well qualified.
Sotomayor likely would not have won significant Republican support even if Obama had voted for Roberts or for Bush's other nominee, Justice Samuel Alito. Though Graham was justified in pointing out Obama's action, the partisan climate transcends any one politician. The president will get the justice he wants and will make history in doing so. But the confirmation process remains a central front in the ideological wars between the parties.