The morning started out so nicely.
Judge Sonya Sotomayor visited Wednesday morning with Sen. Sheldon Whitehouse (D-R.I.). With television cameras rolling and microphones open, Whitehouse let President Barack Obama’s nominee for the Supreme Court know that he, too, loves baseball. (She's credited with ending the sport's strike in 1995.)
Then it was on to visit with Sen. Barbara Mikulski (D-Md.). She informed Sotomayor, that, she, too, loved Nancy Drew novels.
Sen. Lindsey Graham, a Republican Judiciary Committee member from South Carolina, sat next to the judge on his office sofa. “We’re talking about the cost of living in New York. I told her she needs to move to South Carolina,” Graham announced to the assembled press.
Then, the niceness died. ... (continue reading)
“Obviously she’s going to be nice to me. She’s not going to come in here and give me a hard time,” Graham told reporters camped in the hallway outside his office after the meeting. He repeated the lines that are now a meme in the Senate: Sotomayor is “an impressive person.” She has “accomplished a lot in her life.”
But it was only two days earlier that Graham had gone on Fox News to demand that Sotomayor apologize for comments in 2001, now played and re-played on television, that “a wise Latina” might make better rulings than a “white male.” Graham said he didn’t repeat the demand to Sotomayor in their private meeting. “I’m not going to put words in her mouth,” he said.
What he would do is make a direct challenge to Sotomayor’s nomination, on two fronts. First, her unwise "wise Latina" remark. “The one thing I can tell you, this is going to be a big deal: this is more about Ms. Sotomayor than just her confirmation," Graham told reporters. "We’ve got some big issues to resolve here. This comment she made, this speech she gave, that needs to come to a conclusion in a way that makes us a better country.”
The second front: Barack Obama’s own record as a legislator when Republican judges faced the Senate. Using a quote that is sure to be repeated during the upcoming confirmation process, Graham quoted then-Senator Barack Obama, speaking on the floor before voting against the confirmation of Chief Justice John Roberts. The toughest cases, said Graham-as-Obama, "can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspective on how the world works, and the depth and breadth of one’s empathy.”
“If I use that standard, she’s not going to get my vote,” Graham said.
Graham cited the bipartisan confirmations of the liberal Justice Ruth Bader Ginsburg in 1993 by a 96-3 vote, and conservative Justice Antonin Scalia in 1986, 98-0. “Something’s changed in the Senate,” he said. What’s changed is a broadening ideological divide, mixed with politicized social movements on the left and the right like abortion rights, gun rights, and gay rights. They’ve made Supreme Court nominations much more partisan—and bitter--than they used to be. (Graham made no mention of the ugly fight over Judge Robert Bork, which ended in October 1987. Bork was rejected 42-58.)
“If I used the Scalia/Ginsburg standard, she has a chance of getting my vote,” Graham said. “If I use the Senator Obama standard, there is no chance of her getting my vote.” Graham said the standard he chooses will depend on how “the Senate as a whole” approaches the fairness of the judicial nomination process.
It didn’t take long for Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.) to react. “We’ve not going to engineer it to get one person’s vote one way or the other,” Leahy said in an interview. If Graham agrees with charges leveled at Sotomayor by conservative commentators like Rush Limbaugh, Leahy said, “then he should vote ‘no’.”
Graham made his name as a House member by helping to spearhead President Bill Clinton’s impeachment in 1998. It’s unclear if Graham is spoiling for a fight today. He may also not have the votes. Democrats are on the verge of having enough Senate members to make a filibuster of Sotomayor impossible unless they lose several lawmakers to the Republican cause.
But Supreme Court fights are about much more than the nominee. They’re about defining ideology, party, and, of course, raising money from the donors in your base. Graham may not have the votes to block Sotomayor’s confirmation. But there may still be a payoff for deciding not to make nice.