Using Obama’s Judicial Standard on His Nominee

Yesterday, Senator Orrin Hatch, who has voted on 11 Supreme Court nominees, had very good opening remarks in the Sotomayor confirmation hearing.  His whole speech is worth reading (or watching, if you prefer), but I’d like to highlight a section where he notes that Senator Obama seemed to have a different standard for judicial nominees than he has today.  Senator Hatch pointed this out.

I have also found guidance from what may seem to some as an unusual source. On June 8, 2005, then-Senator Barack Obama explained his opposition to the appeals court nomination of Janice Rogers Brown, an African-American woman with a truly compelling life story who then served as a Justice on the California Supreme Court. Senator Obama made three arguments that I find relevant today.

First, he argued that the test of a qualified judicial nominee is whether she can set aside her personal views and, as he put it, “decide each case on the facts and the merits alone….That is what our Founders intended….Judicial decisions ultimately have to be based on evidence and on facts. They have to be based on precedent and on law.”

Second, Senator Obama extensively reviewed Justice Brown’s speeches off the court for clues about what he called her “overarching judicial philosophy.” There is even more reason to do so today. This is, after all, a nomination to the Supreme Court of the United States.

Judge Sotomayor, if confirmed, will help change the very precedents that today bind her as a U.S. Circuit Judge. In other words, the judicial position to which she has been nominated is quite different than the judicial position she now occupies.

This makes evidence, outside of her appeals court decisions, regarding her approach to judging more, not less, important. Judge Sotomayor has obviously thought, spoken, and written much on these issues and I think we show respect to her in taking that entire record seriously.

Third, Senator Obama said that while a nominee’s race, gender, and life story are important, they cannot distract from the fundamental focus on the kind of judge she will be. He said then, as I have said today, that we should all be grateful for the opportunity that our liberty affords for Americans of different backgrounds.

We should applaud Judge Sotomayor’s achievements and service to her community, her profession, and her country. Yet Senator Obama called it “offensive and cynical” to suggest that a nominee’s race or gender can give her a pass for her substantive views. He proved it by voting twice to filibuster Judge Janice Rogers Brown’s nomination, and then by voting against her confirmation. I share his hope that we have arrived at a point in our country’s history where individuals can be examined and even criticized for their views, no matter what their race or gender. If those standards were appropriate when Senator Obama opposed Republican nominees, they should be appropriate now that President Obama is choosing his own nominees.

But today, President Obama says that personal empathy is an essential ingredient in judicial decisions. Today, we are urged to ignore Judge Sotomayor’s speeches altogether and focus only on her judicial decisions. I do not believe that we should do that.

Indeed, Sen. Hatch continues on to note other double standards that Senator Obama applied, based, one can only imagine, solely on the way the judge is expected to rule on particular cases.  Democrats have politicized this process (just ask Robert Bork or Clarence Thomas), but Republicans, like Senator Lindsey Graham, have been much more fair (just ask Ruth Ginsberg), and indeed, as he said, "Now, unless you have a complete meltdown, you’re going to get confirmed." 

When George W. Bush was elected, Republicans defended his policy decisions, in part, with the phrase, "elections mean things".  If the country votes in a President, they vote in his policies and, if the occasion presents itself, Supreme Court nominees.  And so Graham also said, "But President Obama won the election and I will respect that."  Not as a rubber stamp, but the President does get the benefit of the doubt.  Republicans are being consistent in this, and in doing so are trying to hold back or reverse the politicization of the process that Democrats have pushed.

While watching Fox News cover the hearings, as each speaker began their remarks, you saw some information about them; personal information (age, service in politics, etc.), what they’ve said about Sotomayor, and how they voted in past Supreme Court nominees.  It was interesting to see how many Republicans voted for every nominee they ever saw, including Hatch’s 11 Yes votes, but how so many Democrats haven’t yet voted Yes.  In confirming Sotomayor, the Republicans will once again lead by example, hoping perhaps that the Democrats will see this and act likewise when the situation is reversed.  History does not seem to indicate that this will happen, but you can always hope.

Filed under: Democrats • Doug • Judiciary • Politics

Like this post? Subscribe to my RSS feed and get loads more!