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.

Manuel Balce Ceneta/AP
Supreme Court nominee Sonia Sotomayor meets Sen. David Vitter of Louisiana on Capitol Hill in Washington on Monday.

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.

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.

"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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