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Rush to Judge-ment By: Gregory Gethard
FrontPageMagazine.com | Thursday, June 11, 2009

Republicans have known they walk a perilous path in opposing Supreme Court Nominee Sonia Sotomayor, a Latina from a Bronx housing project -- and the Left has taken every opportunity to ratchet up the pressure. White House spokesman Robert Gibbs practically dared Congressional Republicans to criticize Sotomayor, saying, "I think it is probably important for anybody involved in this debate to be exceedingly careful."

The White House’s strategy is simple: get the nomination through as quickly as possible to limit investigation time into her judicial record and philosophy. Senate Judiciary Chairman Pat Leahy announced the Sotomayor hearings will start on July 13 despite Republican objections, and “given the attacks on her character, there are compelling reasons to proceed even ahead of this schedule. She deserves the earliest opportunity to respond to those attacks.”

However, they behaved differently when conducting hearings of conservative nominees. If Republicans follow Democratic precedent, Sonia Sotomayor can expect to face a drawn out confirmation process featuring detailed questions about her judicial philosophy and record, grilling over her religious views, an investigation into her college alumni memberships, and remarks attributing her success solely to her race.

Even the concept of a prompt confirmation hearing is relative. Since the confirmation of David Souter, the average confirmation has lasted 81 days: 63 days for Democratic nominees, 91 days for Republican. Ruth Bader Ginsburg’s hearings lasted only 50 days, and Stephen Breyer’s lasted 76, most of them during Congress’ summer recess. On the other hand, it took Samuel Alito 91 days before his candidacy was voted on. David Souter, whose nomination did not cause any real controversy, had to wait 93 days before he was approved. Clarence Thomas suffered 111 days of humiliation, and even Chief Justice John Roberts's confirmation, which was expedited by William Rehnquist's death and the beginning of the Court's term, lasted 71 days. 

Senate Democrats have taken pains to extend the length of those hearings. Senators Joe Biden, John Kerry, and Ted Kennedy attempted to mount a filibuster against Alito's candidacy. Senator Barack Obama joined their ranks, declaring:

    I will be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values, not just liberal values. When you look at his decisions -- in particular, during times of war -- we need a court that is independent and is going to provide some check on the executive branch.

Biden filibustered Alito on different grounds, saying, "I think he's got a lot of explaining to do" on the issue of abortion, euphemistically called "the right to privacy" in judicial hearings.[1]

The filibuster failed, but the Left has taken various steps to keep these nominations from ever reaching the floor. Alito's nomination narrowly made it out of the Senate Judiciary Committee on a 10-8, party line vote. Five Democrats, including Joe Biden, voted against forwarding John Roberts' nomination. On the other hand, Republican Senator Orrin Hatch smoothed the confirmation hearings of both Bill Clinton nominees. Clinton was leaning towards nominating longtime political ally Bruce Babbit to the post, when Hatch instead suggested two other candidates: Stephen Breyer and Ruth Bader Ginsburg. Hatch’s support came despite Ginsburg’s leftist ideology. Ginsburg, the co-founder of the ACLU’s Woman’s Rights Project, authored a paper entitled “The Legal Status of Women Under Federal Law.” In her paper, Ginsburg said that prostitution was “arguably within the zone of privacy protected by recent constitutional decisions, that single sex prisons were a bad idea, that the Boy Scouts and Girl Scouts “perpetuate stereotyped sex roles,” and also suggested replacing Mother’s and Father’s Day with a single Parent’s Day. Only three Republicans voted nay to her nomination.

Although leftists now want to examine only a nominee's qualifications, they were keenly interested in the legal opinions and judicial philosophy of Republican nominees. Senator Pat Leahy was the first Democrat to have the floor during the Alito hearings and immediately asked the judge about his views on privacy. Said Leahy, "I feel one of the most important functions of the court is to stop our government from intruding into Americans' privacy or our freedom or our personal decisions." He proceeded to question the judge's commitment to laws that "don't overreach in going into that privacy."

In John Roberts’ testimony, Biden immediately hammered the candidate about a variety of issues, but none of them dealt with the logic Roberts used to come to those views, the main goal of confirmation hearings. Biden intoned:

    Like most Americans, I believe the Constitution recognizes a general right to privacy.

    I believe a woman's right to be nationally and vigorously protected exists.

    I believe that the federal government must act as a shield to protect the powerless against the economic interests of this country.

    And I believe the federal government should stamp out discrimination wherever -- wherever -- it occurs.

    And I believe the Constitution inspires and empowers us to achieve these great goals.

    Judge, if I look only at what you've said and written -- as used to happen in the past -- I would have to vote no. You dismissed the constitutional protection of privacy as, quote, "a so-called right." You derided agencies like the Securities and Exchange Commission that combat corporate misconduct as "constitutional anomalies," quote.

    And you dismissed gender discrimination as, quote -- and I quote -- "merely a perceived problem."

Several prominent Democrats voted against Roberts. Dianne Feinstein said that she voted against Roberts because she was unsure of his views of abortion. And Biden said that he would vote against Roberts because the candidate did not answer enough of his questions related to Roberts’ views on the right to privacy.

Biden was the Senate Judiciary Chairman during Clarence Thomas’ hearing. During the first remarks of the hearing, Biden spoke at length about Thomas’ beliefs about “natural law” and how they might alter the dynamic of the Supreme Court, pressing Thomas for details about his worldview.

This could not contrast more sharply with leftists' treatment of Ruth Bader Ginsburg. A case in point came when Biden told Ginsburg: "Judge...you not only have a right to choose what you will answer and not answer, but in my view you should not answer a question of what your view will be on an issue that clearly is going to come before the Court in 50 different forms."

Questions strayed well beyond defensible inquiries into judicial record or philosophy into issues of conscience. In the confirmation of John Roberts, some grilled him over his religious beliefs. Senator Dianne Feinstein asked Roberts, a Roman Catholic, if his decisions would be handed down from the Vatican:

    In 1960, there was much debate about President John F. Kennedy's faith and what role Catholicism would play in his administration. At that time, he pledged to address issues of conscience out of a focus on the national interests, not out of adherence to the dictates of one's religion. . .My question is: Do you?

With religious confession, Senate Democrats deemed long-forgotten memberships, or non-memberships, in alumni or professional associations of capital importance. During Alito’s hearing, Biden memorably attacked the candidate for his membership in the Concerned Alumni of Princeton, a conservative-leaning association of Princeton graduates. Many questions were raised as to what, exactly, Alito’s membership in a college alumni group could possibly have to deal with his ability to serve as a Supreme Court nominee.[2] Not content with Alito's actual membership, others grilled John Roberts over whether he was, or ever had been, a member of the Federalist Society.

Even the thorniest issue Republicans face in the Sotomayor hearings, that of her ethnicity, had been broached by Democrats. Again, the most telling quotation comes from Joe Biden, who groused:

    I think that the only reason Clarence Thomas is on the Court is because he is black. I don’t believe he could have won had he been white. And the reason is, I think it was a cynical ploy by President Bush.

Democrats who engaged in this treatment of Thomas, Roberts, and Alito -- the vice president and president most prominent among them -- are hypocrites to demand any more civil treatment be meted out to Sonia Sotomayor.

Luckily for them, this behavior is not characteristic of their opposition. We are likely see a fair and balanced look at Sotomayor’s record that will end in timely fashion. After all, it’s what we’re used to seeing from Republican senators.

1. The anti-Alito filibuster lacked the votes to go forward; he was ultimately approved by a 58-42 margin, the second closest confirmation in modern history. The closest belongs to Clarence Thomas, who was approved 52-48. 
2. To this day, bad blood exists between Alito and Biden. In December, three years after his nomination, Alito joked at the expense of the vice-president elect, referencing Biden’s history of plagiarizing parts of speeches.

Gregory Gethard is a Philadelphia-based freelance writer.

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