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Past the Judicial Wars

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Thursday, July 30, 2009

There was never much doubt that Sonia Sotomayor would be confirmed as a Supreme Court justice. Her inspiring biography and her evident legal credentials assured that President Obama's choice would become the first Hispanic and the third woman to join the high court. The 13 to 6 Senate Judiciary Committee vote this week makes that a certainty.

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As good as Americans are entitled to feel about the honors to this meritorious product of a Bronx housing project, no one can be comforted by the spectacle of her journey through the Judiciary Committee. The antiseptic hearings and the near-party-line vote illustrate the two great failings of the modern confirmation process.

Ever since a Democratic-controlled Senate rejected President Reagan's nomination of Robert Bork in 1987 and the Republicans vowed revenge, ideological pressure groups on both ends of the political spectrum have been determined to make each Supreme Court vacancy the prize in their mortal combat.

Most senators in both parties have volunteered for or been drafted into the opposing armies. When a Republican president's nominee comes before the Judiciary Committee, Democrats pepper him with hostile questions -- and vice versa.

In response, the nominees have become less and less informative, not daring to repeat Bork's mistake of actually arguing for his view of fundamental legal issues. Instead, they have camouflaged themselves in cliches. For John Roberts, en route to the chief justice's chair, it was the claim that he would be as neutral as an umpire calling balls and strikes. For Sotomayor, it was the contention that a judge simply "applies the law." With endless rehearsals of the nominees by the White House and Justice Department aides, the confirmation hearings have become as scripted as most presidential campaign debates.

At least it has seemed so to me. But this week, when I spoke with two of the more thoughtful members of the Judiciary Committee, Chairman Patrick J. Leahy (D-Vt.) and Sen. Lindsey O. Graham (R-S.C.), they gave me more reason for optimism.

In separate interviews, they each expressed sympathetic understanding for the witnesses who come before them on their way to the bench. Leahy said, "There are so many issues that senators are interested in, but the nominees can't go into their feelings about them, because they don't want to have to recuse themselves when the issue comes before them in court." Graham agreed. "Senators want to know a lot, but nominees have to protect themselves," he said.

Both said that a partial remedy lies in asking the nominees how they reached their conclusions in past cases or administrative rulings and gauging their approach to the law from their answers. But Leahy conceded, "You're never going to find out exactly what they will do on the bench. You have to have a leap of faith."

Both men said they have learned to exploit their private meetings with nominees in their offices, before formal hearings begin. Leahy said he discerned from his conversation with David Souter, when the retired justice was up for confirmation, that he would be "a typical New Englander, very independent in his judgment. So I voted for him," despite Republican expectations that Souter would be a down-the-line conservative. Leahy was right.

Both these senators decry the growing role of interest groups that lobby on judicial confirmations. Both have defied those pressures, Leahy in voting for Roberts and Graham in being the lone Republican to support Sotomayor in this week's vote.

"I pointed out that Roberts was not someone I would have recommended to Bill Clinton or Barack Obama," Leahy said, "but I did not want to see the chief justice of the United States confirmed on a party-line vote."

Graham took the same stance on Sotomayor, saying he expected to disagree with many of her rulings, but gave great deference to Obama's choice because "elections make a difference" and she is "clearly qualified." He said he hoped it would serve as an example to Democrats the next time a Republican president makes a nomination.

If their examples spread, we might avert the ugly partisanship of recent confirmation fights.


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