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Why They Couldn’t Bring Themselves to Vote “Yes”

Sonia Sotomayor’s nomination to the Supreme Court on a 13-6 vote was passed out of the Senate Judiciary Committee. Sen. Lindsay Graham was the sole “yes” vote on the Republican side. It marks the first time a number of Republicans (e.g., Orin Hatch, Chuck Grassley) have not “deferred” to the president of the opposite party on a Supreme Court nominee. Perhaps had she not departed so dramatically and unbelievably from the philosophy expounded again and again in her many speeches, had she been honest about her involvement in PRLDEF, and perhaps had she not misrepresented the facts and law on everything from the en banc proceedings in Ricci to the relevance of state law in abortion jurisprudence, she might have gained some more Republican votes.

Maybe had she said a single novel or intellectually interesting thing, she might have convinced everyone that she had the stuff of a Supreme Court justice. But after a lifetime of advocating racial politics, a shabby performance in the Ricci case, and an entirely disingenuous performance before the Senate, the only surprise is Graham’s vote. As a prosecutor, he must at some level have recognized the lack of candor being shown to him and his colleagues and the offense to the Senate by her untruthful and incomplete answers.

Unfortunately, the lesson learned here is that lack of candor and jurisprudential mediocrity are no longer grounds for denying confirmation. This Senate Judiciary Committee — at least 13 of its members — has disappointingly lowered the bar for confirmation hearings and for the expected performance of nominees.


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