Sen. Lindsey Graham (R-S.C.) was the only Republican on the Senate Judiciary committee voting in support of Supreme Court nominee Sonia Sotomayor. He repeated the tired old saying that “elections have consequences,” trying somehow to shift the blame for his performance to his constituents. The country voted for Obama, and now, Graham apparently believes, we get what we deserve.
But he seems to conveniently forget that South Carolinians also elected him, a senator who claims to be a conservative, to stand up for those conservative principles in the Senate. Yet he betrays his constituents’ trust by voting for someone who is not only a liberal but willing to inject personal preferences into her judicial decisions.
If Graham wants to be technical about it, South Carolina did not even vote for President Obama. Sen. McCain easily carried the state in the 2008 presidential election with 54% of the vote, compared to 45% for President Obama. And these are the people Graham represents: he doesn’t represent all of America.
Graham showed how little understanding of conservative principles he possesses when it comes to judges when he said, “I’ve looked at her record closely. I believe that she follows precedent, that she has not been an activist judge in the sense that would make her disqualified in my view” (emphasis mine). But it what sense can a judge be an acceptable judicial activist?
All judicial activism is wrong. A conservative judicial activist is just as bad as a liberal judicial activist. A judge is supposed to follow the law as written. A Supreme Court justice should not be looking to “empathy” or race or gender to help guide her decisions, as Sotomayor advocates. A judge is not supposed to be making policy, as Sotomayor once said judges at the Court of Appeals do.
Graham tried to defuse criticism by saying there was a time when many Democrats voted for Justice Scalia and Republicans voted for Justice Ginsburg, again missing the point. Conservatives do not object to Sotomayor’s liberalism. We object to her liberal judicial ideology. We object to her belief that she can reach better decisions than other judges because she is a Latina, for example. We object to anyone — on any court — embracing their personal biases and saying that race and gender will affect the facts she choses to base judgment on. We object to her often-stated belief in identity politics and how it can be used to tilt the results in judicial matters.
A judicial nominee should not get away with misleading senators in public hearings while being a totally different person outside the hearings. It was very eye-opening to see Judge Sotomayor say very emphatically during the hearings: “I will not use foreign law to interpret the Constitution or American statutes.” Of course, at the time that statement was just one in a series of “conversions” by Sotomayor from a liberal to a more conservative approach of viewing the law and the Constitution. Before the hearings, she said: “I share more the ideas of Justice Ginsburg … in believing that unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, that we are going to lose influence in the world.”
But as Sen. Tom Coburn (R-Okla.) pointed out, the really amazing thing is that in written questions after her “conversion,” and outside of the public eye, she has again gone back to her stance on the use of foreign law. In her answer to written questions, she wrote: “In limited circumstances, decisions of foreign courts can be a source of ideas informing our understanding of our own constitutional rights.”
Did Graham read that? Of course he did; this and more. He was very tough on questioning her and pointing out many troubling aspects of her record. He just decided not to hold her accountable. Here is what he said at the hearings on her involvement with the radical activist Puerto Rican Legal Defense and Education fund:
I do believe that you, as an advocate with the Puerto Rican Defense Legal Fund [sic], that you took on some cases that I would have loved to have been on the other side, that your organization advocated taxpayer-funded abortion and said in a brief that to deny a poor black woman Medicaid funding for an abortion was equivalent to the Dred Scott case. Now, that’s a pretty extreme thing to say…
[Y]our organization argued for the repeal of the death penalty because it was unfairly applied and discriminatory against minorities…
Your organization argued for quotas when it came to hiring. I just want my colleagues to understand that there can be no more liberal group, in my opinion, than the Puerto Rican Defense Legal Fund [sic] when it came to advocacy…
My point is, I’m not going to hold it against you…
Of course not. America voted for Obama, remember.
Justice, fairness, impartiality and judicial restraint are overrated; Graham made that clear during the Senate Hearings where he talked about what is really important, "[T]his is mostly about liberal and conservative politics more than it is anything else." And he backed it up in his speech supporting her: “I do believe that the Court would not dramatically change in terms of ideology with her selection. Justice Souter, whom I respect as an individual, has been far more liberal than I prefer in a judge, and I think Justice Sotomayor will not be any more liberal than him.”
That is just great thinking. Apparently there is a quota for liberal judicial activists and as long as we don’t go over that, we’re fine.
Graham should look to his colleagues on the committee and ask himself why he is the only “conservative” making these outrageous remarks. He should look to Senators Jeff Sessions (R-Ala.), Jon Kyl (R-Ariz.), Tom Coburn (R-Okla.), Charles Grassley (R-Iowa) or John Cornyn (R-Texas), who have all said they cannot in good conscience support Sotomayor.
Sen.Orrin Hatch (R-Utah), former Ranking Member of the Senate Judiciary Committee and someone who had voted for Sotomayor in the past, said:
Arriving at a final decision was particularly difficult because I like and highly respect Judge Sotomayor and, in general, give a great deal of deference to any President’s nominee. The prospect of a woman of Puerto Rican heritage serving on the Supreme Court brought great excitement to me and says a lot about America.
However, after thoroughly reviewing Judge Sotomayor’s record and being able to hear her testimony and responses during the hearing process, I reluctantly, and with a heavy heart, have found that I cannot support her nomination to the U.S. Supreme Court.
There is a senator who gives the President the deference he deserves, yet looks at a nominee’s record to exercise his “advice and consent” duty in a respectful way.