There is a good chance that sometime this evening, the Senate will confirm the nomination of Judge Sonia Sotomayor to the Supreme Court, with 60-some votes in favor and 30-some votes against. Sen. Jeff Sessions (R., Ala.), the ranking member of the Senate Judiciary Committee, offered some thoughts to NRO this morning.
Sessions: The number of ‘no’ votes indicates a deep concern among Republican members of Senate, who would have liked to have voted for the first Hispanic justice (who is a nice person). But examining her record and her testimony, that support eroded . . .
On her rejection of the “empathy standard” during her confirmation hearings:
Sessions: Her rejection of the empathy standard damages that concept for future nominees. It deserved damaging, and it deserved a stake through its heart. It’s just not law; empathy basically suggests that a person can see the parties and be influenced. It’s more akin to politics than law. As someone who has spent time in court as a lawyer and as a judge, that to me is a fundamental threat to the heritage of law that we have in this country, and others did too.
Last year during the campaign, we had a big discussion on the empathy standard, and the president had already mentioned it before he picked Judge Sotomayor. He affirmed he was looking for a judge with empathy. The danger with this administration is that they change the words without changing the results. On future nominees, they may not cite the word “empathy,” but they may indeed select someone with that same basic outlook on the law.
On the NRA’s use of the Sotomayor vote in its candidate grading this cycle:
Sessions: I think NRA did not desire to get involved in the Supreme Court nomination, but they had to in this case. She could be the Supreme Court in the next few years and end up being the decisive vote on a case that could eviscerate the Second Amendment. I spoke a bit on this on the Senate floor last night.
After the Heller case, there was a footnote that said that because it dealt with the District of Columbia, it didn’t necessarily apply to states. In a case this year, Sotomayor didn’t say that may not apply to the states, which could be defended perhaps, she said it was settled law that the Second Amendment did not apply to the states. But the Supreme Court had left the question open in Heller. That suggests her mind may be firmly fixed on this issue.
On whether opposition to Sotomayor was mitigated by the fact that she was replacing David Souter:
Sessions: I think that was a factor, and several senators made a reference to that, but I don’t see it that way. The way I see it, every single seat on the United States Supreme Court is an exceedingly important thing, and we should not confirm anyone who is not committed to their oath to be impartial and objective and to fairly decide the cases on what he law says, and not on what they want the law to say . . . The more we get away from that, the more we erode the ability of the law to protect all of us . . . This modern idea that judges can update the Constitution and the idea of the Constitution as a living document is pernicious.
On whether Sotomayor will get more than John Roberts’s 22 “no” votes:
Sessions: I’ve heard that comment, that she’s not as strong a nominee as John Roberts and should not fare as well in the vote . . . Among senators, there has been a reevaluation as to how much deference they will give a president . . . Some gave exceeding deference to the president. Many Senate Democrats threatened a filibuster of Alito, voted in large numbers against Justice Roberts, and I think this has caused everybody to rethink what the standard of deference ought to be. I’ve given the president more than he gave to [President Bush on the nomination of] John Roberts, but we’re required to determine whether or not this judge will enhance the rule of law.
On whether the days of confirmation by wide, bipartisan margins are over:
Sessions: The Constitution doesn’t set any standard for voting on a Supreme Court nominee; it just says “advise and consent.” It makes no sense to oppose someone who you just wouldn’t agree with on some issues, because the president is liable to nominate someone with same views or worse. I don’t mind if someone is liberal or strong partisan Democrat as long as they recognize that once they’re on the bench, they’re no longer a politician, and that their duty is to render a just verdict . . . When I have a nominee like Sotomayor where her speeches are replete, over a decade, with the idea that your personal opinions, sympathies, and even prejudices can affect your decisions and the facts that you consider in a case, that to me is disqualifying. She backed away from some of those statements at the hearings, but I don’t think there was sufficient clarity. I hope I’m wrong. In some areas, she’s shown some pretty solid ability to plod through cases and render verdicts fairly.
As to future, it’s going to be incumbent on Republicans to examine future nominees from the Obama administration as to the empathy standard, background, and approach to law. The public will not look favorably on packing the courts with activist judges with agendas. This is beginning of national discussion about the role of law in America, and we’ve already seen a number of troubling nominees. We have a long battle ahead.
