GOP's new Sotomayor strategy: Attack Obama

"Maybe the [Republican] intent is suddenly to give a darker interpretation to empathy and mike it the Darth Vader of any kind of judicial appointment," said Sen. Dianne Feinstein (D) of California.

The argument "doesn't hold up," said Sen. Sheldon Whitehouse (D) of Rhode Island, on Monday. "But it does show they're looking for an excuse to filibuster."

While judicial nominations have become highly politicized in recent years, this marks the first time that a president’s votes as a senator have entered into the debate over his judicial nominations.

“Presidents Kennedy, Johnson, and Nixon all had Senate experience. But Supreme Court nominations were not as highly controversial or as contested as they are today,” says associate Senate historian Donald Ritchie.

“President Obama talked to a number of senators before he made his decision [on Sotomayor]. But as a senator, he did cast a vote against Roberts and Alito. His reasoning and the way he defended it is now part of the mix,” he added.

'I don't think most Americans would agree'

Senate Republicans concede that they probably don’t have the votes to block the Sotomayor nomination. But they want to highlight what they say is a gap between how Obama views judicial nominations and how most Americans see them.

Obama "clearly thinks that – whether you call it empathy or discretion – that judges ought to be left with the ability to determine results based on something other than what the law is," says Sen. John Cornyn (R) of Texas, a member of the Judiciary panel. "I don’t think most Americans would agree with that approach, no matter how you dress it up or how benign you make it sound.”

That’s why Republicans will be talking both about the president’s philosophy and approach to the law as well as the nominee’s during coming hearings, he adds.

Empathy as a flash point

Empathy has emerged as an early flash point for Sotomayor, as senators challenge statements in speeches that suggest that ethnic identity conveys special wisdom or empathy in judicial decisions.

In a 2001 keynote speech to a law conference in Berkeley, Calif., Sotomayor said she “would hope that 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.” Similar references appear in at least three other speeches released to the Senate Judiciary Committee last week.

Sen. David Vitter (R) of Louisiana found an opportunity for a lighthearted riposte to Sotomayor Monday. When she arrived at his office on crutches – having fractured her ankle while boarding her flight from New York earlier in the day – Senator Vitter had a pillow and some ice at the ready.

“I hope you all note that some Republicans are empathetic, too,” he said.

But he told reporters after the hour-long meeting that he had “very serious concerns.” When he asked Sotomayor about her "wise Latina" comments, “she said that given the interpretation that has arisen about those words, she would choose different words today,” he said.

Republicans say Obama also needs to revisit his past statements – in his case, on Alito and Roberts. In comments Monday, Graham said Senator Obama "chose to look at the political implications of a primary over the qualification of [Roberts and Alito].... It would be helpful to the country if he would acknowledge that he made a mistake."

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