Yesterday’s spats shadow future court debates

By Seth Stern, CQ Staff

updated 11:41 a.m. ET Aug. 4, 2009

WASHINGTON - Sen. Lindsey Graham emerged from a June meeting with Judge Sonia Sotomayor pining for the days when a Supreme Court nominee could attract overwhelming bipartisan support.

Graham cited Ronald Reagan’s nomination of Antonin Scalia, who was confirmed by a vote of 98-0 in 1986, and Bill Clinton’s nomination of Ruth Bader Ginsburg, confirmed by 96-3 in 1994.

“What happened to those days?” asked Graham, R-S.C. “That’s not the Senate I’ve been part of. I would like to go back to that, but I live in a world where it may be very difficult to do that.”

Now, two months later, Graham is among just six Republican senators who have announced plans to support Sotomayor as the Senate on Tuesday begins to debate her nomination on the floor.

Twenty-seven Republicans have come out against her nomination, while seven remained publicly undecided as of Monday evening.

But even if no additional Republicans vote for Sotomayor, she would still receive more cross-party support than Justice Samuel A. Alito Jr. did in 2006, though far less than Chief Justice John G. Roberts Jr. received the previous year.

The Sotomayor nomination is the latest in the increasingly partisan battle over judicial nominations, including lower-court nominations. And the way Republicans have largely united against Sotomayor signals trouble for President Obama’s future Supreme Court nominations should Democrats lose seats in the midterm elections.

Past partisan clashes

Video   Senate panel OKs Sotomayor July 28: By a vote of 13 to 6, including GOP Senator Sen. Lindsey Graham of South Carolina, the Senate Judiciary Committee votes in favor of Sonia Sotomayor's nomination for the Supreme Court. MSNBC

Certainly, partisan fighting over Supreme Court nominees has a longer history than Graham’s halcyon account in June suggested. Scalia sailed through the Senate in part because Democrats focused their fire at the time on Justice William H. Rehnquist’s elevation to chief justice.

In 1987, Democrats sank Judge Robert H. Bork’s nomination to the Supreme Court after denouncing his conservative judicial philosophy. Two decades earlier, Republicans joined with conservative Southern Democrats to scuttle President Lyndon B. Johnson’s attempt to elevate Justice Abe Fortas to chief justice in 1968.

But the way Democrats — including Sen. Barack Obama of Illinois — handled the Roberts and Alito nominations only deepened the ill will.

Obama was one of 25 Senate Democrats who unsuccessfully attempted to filibuster Alito’s nomination. And he made clear that he opposed Alito and Roberts on the basis of their ideology.

Republicans have expressed no interest in trying to filibuster Sotomayor’s nomination, an effort that would be certain to fail, given Democrats’ large majority in the Senate. As a result, few Republicans feel any need to give the benefit of the doubt to Obama’s nominee. And they have made Sotomayor’s ideology the focus of their criticism.

Arguments against Sotomayor
During the floor debate, Republicans are likely to repeat concerns that Sotomayor would be unable to put aside her “personal opinions and biases,” in the words of Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee.

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Other Republicans are expected to echo the argument of Orrin G. Hatch , R-Utah, that Sotomayor’s “speeches and articles described a troubling approach to judging that her hearing testimony did not resolve.”

The opposition from Hatch and another senior Judiciary Committee Republican, Charles E. Grassley of Iowa, is particularly notable. Neither Hatch nor Grassley has ever voted against a Supreme Court nominee before. They both supported Clinton’s two nominees, Ginsburg and Stephen G. Breyer .

Hatch, like other members of his party, indicated that he is still bitter about the way Democrats treated GOP nominees to the lower federal courts when they were in the minority.

In a floor speech on Monday announcing his opposition to Sotomayor, John McCain of Arizona became the latest of many Republicans who have invoked the experience of Miguel Estrada, whom George W. Bush nominated to the U.S. Court of Appeals for the D.C. Circuit. Democrats repeatedly filibustered Estrada’s nomination, in part because of concern that he was being groomed to be the nation’s first Latino Supreme Court justice.

Democrats, including Judiciary Chairman Patrick J. Leahy of Vermont, in turn, harbor resentment over how Republicans bottled up Clinton’s nominees after taking control of the Senate in 1994.

While the Democrats’ large margin all but ensures Sotomayor’s confirmation before the Senate recess Aug. 7, the situation could be different for Obama’s future Supreme Court picks, particularly if the nomination could alter the court’s ideological balance.

“If a conservative leaves the court, there will be a huge, huge battle,” said Jeffrey Segal, a political science professor at Stony Brook University. “And if this is after the 2010 elections and the Republicans pick up a few seats, you could readily imagine a filibuster.”

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