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GOP's new Sotomayor strategy: Attack Obama

As a senator, Obama voted against Justices Roberts and Alito on the basis of their ideology, Republicans say. Why can't we do the same? they ask.

By Staff writer / June 9, 2009

Supreme Court nominee Sonia Sotomayor meets Sen. David Vitter of Louisiana on Capitol Hill in Washington on Monday.

Manuel Balce Ceneta/AP

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Washington

As Judge Sonia Sotomayor moves into a second week of Capitol Hill “courtesy calls” that even a fractured ankle could not stop, the GOP strategy over her confirmation is shifting from her views to those of the president who nominated her.

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At the heart of the case against confirmation is what Republicans are calling “the Obama standard” – that is, the votes that then-Sen. Barack Obama cast against Bush nominees John Roberts and Samuel Alito, and his reasons for casting them.

The Obama standard, Republicans say, is that a nominee’s ideology or lack of "empathy" is a legitimate reason to reject that nominee, however well qualified.

By invoking the Obama standard, Republicans can oppose Judge Sotomayor's nomination without attacking her character or qualifications – something that could anger Hispanics, a key voting bloc.

“There was a different day when we didn’t do it that way,” said Sen. Lindsey Graham (R) of South Carolina, after meeting with Sotomayor last week.

He cites the confirmations of Justices Ruth Bader Ginsburg and Antonin Scalia as examples of that former time. The two justices won big, bipartisan votes: 96 to 3 and 98 to 0, respectively.

“If I use the Ginsburg-Scalia standard, [Sotomayor] has a chance of getting my vote," Senator Graham added. "If I use the Senator Obama standard, there’s no way she will get my vote."

July 2007 campaign speech is cited

Exhibit A in the new GOP argument is an Obama campaign speech to Planned Parenthood Action Fund on July 17, 2007, where he explained his votes against Justice Roberts.

Responding to a question on how he would nominate judges, Obama said that in some 95 percent of Supreme Court decisions, “the law is pretty clear…. But it’s those 5 percent of the cases that really count. And in those 5 percent of the cases, what you got to look at is: What is in the justice’s heart? What’s their broader vision of what America should be.”

He continued: “And we need somebody who’s got the heart … the empathy to recognize what it’s like to be a young, teenaged mom; the empathy to understand what it’s like to be poor or African-American or gay or disabled or old. And that’s the criteria by which I’m going to be selecting my judges.”

GOP senators invoked that speech in an executive meeting of the Senate Judiciary panel Thursday that previewed the new Republican strategy.

“So, what does the president’s empathy standard mean? In my mind, empathy can mean not much less than bias,” said Sen. Jeff Sessions of Alabama, the top Republican on the panel.

“He actually listed groups for whom there would be empathy, obviously suggesting other institutions and groups wouldn’t have empathy. It’s a dangerous thing and inimical to the US system of justice,” he added.

Democratic senators defend Obama's views

In response, panel Democrats said Obama's views on picking judges is not out of the mainstream.