There was never much doubt that Sonia Sotomayor would be
confirmed for the Supreme Court. Her inspiring personal 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
13-6 Senate Judiciary Committee vote earlier this week makes that a
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
Most senators in both parties have volunteered 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
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
Leahy, D-Vt., and Sen. Lindsey Graham, R-S.C., they gave me more reason for
In separate interviews, they both 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
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 committee 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.