Analysis: Old arguments flare at hearings

ANALYSIS

updated 1:33 p.m. ET July 14, 2009

WASHINGTON - Sonia Sotomayor's Supreme Court confirmation hearing is evidence that nothing ever ends in the Senate, and proof that debates persist years after the votes are counted.

The first Hispanic nominated to the Supreme Court, Sotomayor could have been forgiven for thinking she had stumbled into the middle of an endless argument Monday when Democrats and Republicans took turns airing old grievances about past judicial battles.

Sen. Lindsey Graham, R-S.C., told Sotomayor — and voters within the sound of his voice — that Republicans who oppose her, "I assure you, could vote for a Hispanic nominee."

He cited Miguel Estrada as an example, harkening back to earlier in the decade when Democrats successfully blocked confirmation for the Honduran immigrant and Harvard law school graduate whom President George W. Bush had nominated to be an appeals court judge.

Graham said Estrada had a "stellar background like yours" and alluded to the possibility that he might have one day been named to the highest court. "He never had a chance to have this hearing," he added as Sotomayor listened from a few feet away.

Democrats maneuvered successfully to block Estrada's confirmation to the appeals court, sustaining a filibuster on seven separate occasions over two years. They said they did so because the White House had refused to turn over documents relevant to Estrada's tenure as a White House lawyer.

Not content to let the matter die, Sen. Jeff Sessions, R-Ala., announced at Tuesday's hearing that he had a statement from Estrada explaining "how his nomination was blocked by consistent filibusters by the Democrats when there was a majority to confirm him."

Sen. Sheldon Whitehouse, D-R.I., had a grievance or two of his own to air, specifically about two confirmed Republican Supreme Court nominees, Chief Justice John Roberts and Samuel Alito.

"The Roberts court has not kept the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito," he said in remarks that amounted to a charge of judicial bait and switch.

"For all the talk of modesty and restraint, the right-wing justices of the court (have) a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections and discovering new constitutional rights," he added.

"Some balls and strikes," Whitehouse said sarcastically, a reference to a statement Roberts made at his confirmation that the role of a justice was akin to that of an umpire behind home plate.

Sen. Orrin Hatch, R-Utah, wasn't quite ready to let bygones be bygones either, and said he had found "guidance from what may seem to some as an unusual source."

He said that in 2005, then-Sen. Barack Obama of Illinois laid out several reasons explaining his opposition to Janice Rogers Brown, an African-American and a Bush nominee to the federal appeals court.

"First, he argued that the test of a qualified judicial nominee is whether she can set aside her personal views," he said, contrasting that to Obama's more recent statement that he wanted a Supreme Court nominee with empathy.

Video   Sotomayor responds to doubts about her impartiality July 14: The Supreme Court nominee tells Sen. Jeff Sessions that "sympathies, opinions and prejudices" won’t influence her decision-making. MSNBC

Second, Hatch said Obama had reviewed speeches Brown had made away from the court — an obvious reference to Sotomayor's 2001 remark that she hoped "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."

While Obama and Democrats filibustered Brown's nomination for months, she was eventually confirmed after a group of centrist senators stepped in and negotiated a compromise between the two parties.

Hatch also had a few other thoughts about Obama, whom he noted had opposed Alito and Roberts in the Senate.

"Sen. Obama never voted to confirm a Supreme Court justice. He even voted against the man who administered the oath of presidential office, Chief Justice John Roberts, another distinguished and well qualified nominee," the Utah Republican said.

Graham, a lawyer as well as a politician, offered this summation as he addressed Sotomayor and her quest for confirmation:

"The Hispanic element of this hearing is important, but ... this is mostly about liberal and conservative politics more than it is about anything else."

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