Amidst all the senatorial bloviations on opening day of the Sonia Sotomayor hearings - a day in which Sotomayor had to sit mute with a small smile and brave the rhetorical pomp that typifies life in the Cave of Winds - two remarks struck me as particularly egregious examples of sophistry.
First up, Iowa Republican Sen. Charles Grassley. His basic pitch, as expected, was that Sotomayor's ethnicity might undercut her ability to be impartial. To buttress his argument, he helpfully sought to lecture her on how to behave on the bench: "The Constitution requires that judges be free from personal politics, feelings, and preferences...The American legal system requires that judges check their biases, personal preferences, and politics at the door of the courthouse."
Wait a second, I thought that Republicans were committed to citing the actual text of the Constitution. My understanding was that they frown upon anyone who strays beyond the words as written. Well, I guess I now stand corrected. Grassley apparently has found somewhere that the Constitution "requires that judges be free from personal politics, feelings, and preferences," whereas I can't seem to find any such requirement anywhere in the document, not a single word. All I can find, in Article 3, is that federal judges "shall hold their Offices during good Behaviour," but maybe Grassley was just giving those words a more...liberal...interpetation.
Breaking news: All nominees have always brought their politics, feelings, and preferences to the high court. That's what makes them human, as opposed to being machines. Democratic presidents nominate people with whom they feel instinctively comfortable (ideologically speaking), and why Republican presidents do the same.
Case in point: John Roberts. In a past life, he was a corporate attorney; in his current life, as chief justice, he has helped shape a decidely pro-business Supreme Court. During the 2006-2007 term, the U.S. Chamber of Commerce's legal arm filed briefs in 15 cases and won 13, the chamber's highest winning percentage in 30 years. Legal scholar Jeffrey Toobin recently noted that, in Roberts' first four years on the court, he has sided with the corporate defendant in every major anti-trust case; all told, Toobin concludes, "Roberts has served the interests, and reflected the values of the Republican party."
If the U.S. Constitution actually did require that judges ignore their "politics, feelings, and preferences," then John Roberts would be in flagrant breach. No, what really "worries" Grassley (his word) is that Sotomayor doesn't have the right politics, feelings, and preferences, as defined by the outgunned GOP minority.
Next up, South Carolina Republican Sen. Lindsey Graham, who, like many of his colleagues, brought up Sotomayor's eight-year-old public forum remark ("I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.") He then asserted, "If I had said anything like that, my career would be over."
I've heard this complaint repeatedly in recent weeks, this notion that a white nominee would automatically be toast if he or she had ever publicly suggested that a white male in robes might reach a better conclusion than a person of color. That's obviously true, as far as it goes. But here's the point that everyone, including Graham, seems to ignore:
During the first 200 years of this country, white males never needed to publicly make the argument that they as jurists were wiser than everybody else...because that was already the conventional wisdom, the default assumption that guided all personnel decisions about the high court.
With only four exceptions over two centuries (Thurgood Marshall, Clarence Thomas, Sandra O'Connor, and Ruth Ginsburg), white males have always been viewed as the authors of better conclusions. It was a given in this culture; that's why white males were routinely tapped for the high court, with few Americans even thinking to question the practice. Sotomayor, in that remark eight years ago, was at worst questioning the conventional wisdom that prevailed for so long.
But Lindsey Graham does deserve kudos for his attempts yesterday to cut through the bull and acknowledge the obvious. He said, in essence, that all the high-road rhetoric at the confirmation hearings is mere shadow play; that, in reality, this is "mainly about liberal and conservative politics." And he signaled that, for now, the conservative politickers have lost.
"My inclination is that elections matter," he said. "Barack Obama won, and that matters." By essentially arguing that Obama deserves broad latitude in picking the people he wants, Graham - a potential swing vote on the Judiciary Committee - might be giving some Republican senators sufficient cover to vote for Sotomayor on confirmation day.
Given the fact that Obama, as a senator in 2006, signaled a desire to filibuster Samuel Alito's nomination (a stance designed to deny President Bush broad latitude), the 2009 Senate Democrats might consider sending Graham a note of gratitude.