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Battle Lines -- for Another Day

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Thursday, July 16, 2009

The combination of an over-rehearsed witness and opposition senators fighting without much ammunition robbed the Sonia Sotomayor confirmation hearings of their expected drama. Those who watched the proceedings were left only with the occasional reminder of past Supreme Court battles and the promise of more to come.

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President Obama's choice to succeed Justice David Souter and become the first Hispanic on the Supreme Court has a compelling personal story, and she displayed a tough-minded intellect that will make her a force on the bench when she dons the black robe in September. But Sotomayor had been so prepped by the White House that she showed almost nothing of her personal philosophy or personality. Her expression rarely changed from a serious frown, and her busy note-taking on the senators' questions masked any emotion.

During George W. Bush's presidency, when Democrats had the chance to examine his Supreme Court appointees, John Roberts and Samuel Alito, they found plenty to question in the work those two had done for past Republican administrations. Nothing in Sotomayor's early career as a prosecutor and corporate lawyer provided comparable riches for the GOP.

Instead, Republicans had to build a case against Sotomayor out of fragments of sentences from her many speeches. Some of them can be read as encouraging female and minority judges to bring their special sensibilities to bear in their work on the bench.

But the Republicans found nothing in her hundreds of rulings in the federal courts in New York to suggest that Sotomayor gives free rein to impulses based on ethnicity or ideology. She has been as careful in her verdicts as in her facial expressions.

With this first Obama nominee clearly ticketed for confirmation, the Republicans used the hearings to remind voters of Obama's own history of partisanship in the treatment of judicial nominations. As a senator for Illinois, Obama voted against both of Bush's Supreme Court choices and joined in filibusters to block others named to the appellate courts.

Republican Sens. Jeff Sessions and Orrin Hatch had a good time quoting Obama's words back to him, including the many instances in which he said that senators are well justified in looking beyond the intellectual and professional qualifications of the nominated judges and examining "their broader vision of what America should be."

That is, they pointed out, a political test, and for those who would like to believe that politics stops at the courthouse door, it is a no-no.

Republican Sen. Lindsey Graham of South Carolina, more realistic, told Sotomayor that he knew that "no Republican [president] would have chosen you" -- but still could imagine voting for Obama's choice himself.

By making the best of their meager case against Sotomayor, the Republicans signaled to Obama that they are ready to fight harder if he names to the bench other liberals less armored by their personal histories.

But the Democrats are clearly ready for that fight, fueled by their resentment of the two Bush appointees who have already moved the Supreme Court in a markedly more conservative direction. Chief Justice Roberts won 22 Democratic confirmation votes, not only with his obvious legal credentials but his bland assurances that he saw the job of a justice as akin to that of a baseball umpire -- enforcing the rules, not rewriting the rulebook.

One after another, Judiciary Committee Democrats told the Republicans: You fooled us once, but never again. Sen. Dianne Feinstein of California, for one, pointed to the long list of significant decisions on which Roberts and Alito have led or joined a 5-4 majority, overruling precedent and narrowing individual rights. "I do not believe that Supreme Court justices are merely umpires calling balls and strikes," Feinstein said. "I believe that they make the decisions of individuals who bring to the court their own experiences and philosophies" -- the very thing that Republicans say they worry about in Sotomayor's speeches.

Strip away all the rhetoric, and what you have left is a certainty that partisanship and deeply felt battles will continue to rage every time there is a vacancy on the Supreme Court.

davidbroder@washpost.com



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