Bench Memos

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Graham: More Activist Than Sotomayor


It’s not a great surprise, but still somewhat incredible, that Sen. Lindsey Graham is casting his vote in favor of Judge Sonia Sotomayor for the U.S. Supreme Court. 

Most incredibly, Graham is doing so based upon his apparent willful blindness to her record, both on the bench and off, of indulging her own ethic and gender biases, personal political views, and liberal agenda in the name of “law.”

If anything, he comes off in the transcript of her hearing as being even more of a judicial activist than she is. (Judicial activism being defined as a judge substituting her own personal policy preferences or notions of justice for what the text, history, and principles of the law provide.)

For example, in his line of questioning about whether the Second Amendment’s right to bear arms is a “fundamental right,” he insisted that “your opinion as to what’s fundamental among all of us” is what “the rule of law” is.

Judge Sotomayor rebuffed him several times, saying it was not her opinion but “the rule of law” that determined the question; that it was not her opinion but legal analysis that was at issue; and when he interrupted her because he didn’t like her (correct) answer, he said:  “Is there a sort of legal cookbook that you can go to and say this is a fundamental right, A, and B is not?”

Sotomayor said, “Well, there’s not a cookbook, but there’s precedent.”

Graham would not give up, asking, isn’t “personal judgment” relied on by a Supreme Court Justice in deciding what rights are fundamental? 

Sotomayor again demurred: “Well, you hire judges for their judgment, not their personal views.”

Graham refused to give up and finally insisted, “You’re not going to find a law book that tells you whether or not a fundamental right exists vis-a-vis the Second Amendment,” and “you’re going to have to rely upon your view of America” to decide what the right to bear arms is.

A more hearty endorsement of the Obama standard of judging based on a judge’s own personal “core values” and what’s in her “heart” is hard to find. 

Graham actually said — I’m not making this up; you can check the transcript — that he hopes that Sotomayor will talk to her “godchild, who’s an NRA member” to help her “assimilate” her “view” as to what the Second Amendment means. 

Graham concluded that Sotomayor will be able “to embrace a right that (she) may not want for (herself)” — abortion? same-sex marriage? human cloning? rights for terrorists? — and this is precisely what makes her “not an activist” and acceptable to him as a Supreme Court Justice.

In his cynical, pandering comments during the Judiciary Committee hearings, which were clearly aimed at drawing attention to himself rather than illuminating the role of the Court in our constitutional republic, Graham also said that he would not have “had the courage” in South Carolina in 1955 to publicly conclude that the Constitution’s guarantee of racial equality meant that “separate was not equal.”

He proved that he still lacks courage, statesmanship, and an understanding of the Constitution and rule of law. May his antics get the attention they richly deserve.


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