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Sotomayor political circus pulls into D.C.

Friday, June 5, 2009 | 12:01 a.m. CDT; updated 6:34 p.m. CDT, Tuesday, June 9, 2009

Thanks to Supreme Court Justice David Souter's retirement, our nation’s capital will not need a visit from the Ringling Bros. Barnum & Bailey's three-ring extravaganza. President Barack Obama’s nomination of 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor, a Latina woman who appears to share his judicial philosophy, to fill Souter’s seat on the bench promises a summer of nonstop entertainment, courtesy of a hyperactive and overabundant media fueled by the histrionics of liberal and conservative fringes alike.

Courtesy of TV cameras installed in the Senate Judiciary Committee chamber, senators will deliver the now-expected pompous, preening and pontificating consummate to their exalted positions as elected solons. The bad news is that many will use this as a period of self-aggrandizement and partisan politicking before they begin the task at hand — questioning the witness. The good news is that we are spared the long-winded and usually irrelevant soliloquies of former senator, now vice president, Joe Biden.

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This nomination is being hyped as the fight of the century, a kind of political "Thrilla in Manila" in the mainstream media as well as by talk radio hosts and television “talking heads.” Whether for lack of any real news to report or because this affords ready-made commentary without any real effort, the assorted media are doing the public a disservice in inventing a conflict that in reality does not exist.

In a typical example, the headline of a recent Associated Press article by reporter Phillip Elliot read, “GOP senators keep up criticism of Sotomayor.” However, upon reading the column, one found the critics were Rush Limbaugh and Newt Gingrich, criticisms totally ignored by Minority Leader Mitch McConnell and Sen. Jeff Sessions, the senior Republican on the Senate Judiciary Committee, each indicating they had better things to do than to baby-sit conservative commentators. Nice try Mr. Elliot, but neither Limbaugh nor Gingrich are U.S. senators.

The Republican minority on the Senate Judiciary Committee will question the judge concerning her judicial philosophy and temperament. Her decisions, statements, speeches and opinions will be dissected and drawn-and-quartered, as have those of her predecessors. And politics being politics, this grilling has become progressively more personal, more nitpicking and more adversarial. Sadly, civility and manners have been supplanted by a “gotcha” mentality of some senators who seem to value self-interest over relevant issues.

Judge Sotomayor has offered a few controversial utterances during her judicial career – her “I hope a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life” will require some explanation, as will her assertion that “policy is made in the appellate courts.” She will also be queried on appearance of “judicial activism” and the president's stated desire for empathetic judgments from the bench.

Although some find these comments unacceptable, the Senate will judge her total performance on the bench – the sum of the actions are the real test. If off-handed and sometimes unfortunate phrasing were bars to elected or appointed office, we would be hard-pressed to field a quorum in the legislature, the courts or even elect a president. Let the questions be asked and answered and the chips fall where they may.

The fact that her first appointment to the federal bench was by President George H.W. Bush upon the recommendation of highly respected New York Sen.Daniel Moynihan will be in her favor. Additionally, unlike Democrats, Republicans have generally favored a sitting president's nominees to court and cabinet receiving an up or down vote on the floor of the Senate. And the GOP has treated recent appointees with more deference, confirming Justices Ruth Bader Ginsburg and Stephen Breyer 96-3 and 87-9, while Democrats have voted 52-48, 58-42 and 78-22 for Justices Clarence Thomas, Samuel Alito and John Roberts, respectively.

Republicans have an ax to grind, beginning with the 1987 derailing of Supreme Court nominee Robert Bork and continuing with the Senate Democrats' 2003 filibuster of Miguel Estrada, which was the first-ever filibuster of an appelate court nominee. This filibuster was followed by nine more by the Democrats, secure in the knowledge that they had more than enough votes to block. Nevertheless, I don’t foresee an effort to block Judge Sotomayor’s appointment — Republicans have stood on the principle that a president is entitled to an up or down vote – reciprocal revenge is childish hypocrisy.

Accordingly, media-contrived free-for-all to the contrary, she will be questioned thoroughly and found qualified by a majority that will include Republican votes. By the way, Article III of the Constitution is remarkably silent on the requisite qualifications for the Supreme Court – no age nor citizenship requirements exist, and, very conspicuously, neither does a requirement that the appointee be a lawyer.

Perhaps the Founding Fathers were trying to tell us something?

J. Karl Miller retired as a colonel in the Marine Corps. He is a Columbia resident and can be reached via e-mail at JKarlUSMC@aol.com.


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Comments

Christopher Foote June 5, 2009 | 12:09 p.m.

Comparing the confirmation votes of Clinton's picks versus the Republican's is a bit disingenuous. Clinton wanted to avoid a fight with the Senate and thus asked the ranking minority member of the Senate Judiciary committee to recommend potential nominees. That senator was Orrin Hatch, and here's what he said:
"Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer's name but had not thought about Judge Ginsburg."
Clinton than nominated the two judges that Hatch suggested, thereby avoiding a senate show down.
In contrast, Thomas had the Anita Hill controversy. Alito had a significant track record ruling against civil liberties, was in favor of expanding the power of the executive branch, was in favor of presidential signing statements (which I view as unconstitutional) and appeared to be less than honest in his senate confirmation hearing.
Also, one vote tally absent from this article is that of Antonin Scalia, who I would consider one of the most conservative members to ever serve on the court. His vote in 1986 was 98-0. Not a single Democrat voted against him. I think if a senator believes a nominee will not uphold the constitution and law as he/she interprets it than they have a duty to not confirm. This is the basis for the advise and consent clause in the constitution. Note that only Clinton followed the "advise" part of the clause with respect to the minority party.

(Report Comment)
R. Whitfield Smith June 11, 2009 | 8:42 a.m.

Nice behind-the-scenes historical perspective by Mr. Foote. A bit disingenuous on his part, however, to argue that Col. Miller was disingenuous to begin with. Nothing gained there.

R. Whitfield Smith
Chapin, SC

(Report Comment)

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