Lindsay Graham says he is troubled by the gap between her speeches and what we are hearing today. He asks what “legal realism” means. She gives an answer about as bad as Sarah Palin’s explanation of the “Bush doctrine.” She says it is looking at things in the context of “realism” — or words to that effect. Graham helps her out — “touchy, feely stuff”? Well, she’ll agree with that. She is now wowing us with her legal philosophy. Is the Constitution a “living document”? She avoids “going there” by saying the Constitution doesn’t change but society does. He is asking crisp yet important questions and she frankly looks unprepared. Does the Constitution as written prevent states from regulating abortion in the Constitution? Anything in the document? She retreats to the “broad liberty provision of the Constitution.” And Graham says it is that “broad provision” which brings us here. He speaks rather eloquently in favor of letting the elected branches “change” society. But then he frankly wimps out a bit, and only asks her whether she can understand that. Sure!
He then goes through the complaints on her temperament. Not my favorite line of questioning because lots of judges are pistols and she’s not up for a trial judge slot. And it is easily rebutted: Yes, she says, she asks tough questions. Well, you’re tougher than your colleagues, aren’t you? She says she has no temperament problem.
It isn’t clear how Graham is leaning here. Is he really disturbed or just stepping up his rhetoric to calm irritated conservatives? He plainly isn’t giving her complete “deference” as he spoke about in his opening comments.
UPDATE: He focuses on the “wise Latina” comment and says that had he made the comment in a campaign against a minority opponent it would be curtains. She “understands” that and asks for her comment to be understood in the context of her whole career. Graham seems to leap at that, declaring that would be a great thing to come out of this hearing. Sigh. But what did she mean? And why did she say it? And if it is not a single statement but one repeated over and over again, shouldn’t we be very concerned?