That’s the title of my new Confirmation Tales post, my Part 2 on why Senate Republicans pressed Sonia Sotomayor on the issue of abortion at her confirmation hearing in 2009 far more than they had pressed Ruth Bader Ginsburg in 1993. A couple of excerpts:
As I’ve recounted (in “That Sure Wasn’t in My Talking Points: Why I nearly fell off my chair”), it was quite a shock to me to discover that [Senator Orrin] Hatch was eager to signal to [Bill] Clinton that he wouldn’t be fighting Supreme Court nominees over judicial philosophy. Under the deference approach that Hatch applied (and encouraged other Republicans to apply), a senator deciding whether to support or oppose a nominee should ignore or demote considerations of judicial philosophy and focus primarily on whether the nominee meets some suitable standard of intellect, character, and experience.
A senator who adopts the deference approach doesn’t want a Supreme Court nomination to become controversial. He has no interest in exposing aspects of the nominee’s record that will upset his own political base. So it was that Hatch and other pro-life Republicans on the Judiciary Committee didn’t want to make Ginsburg’s record on abortion prominent….
Now that the parties have broadly polarized over ideology, it’s easy to forget how different things were at the time of Ginsburg’s confirmation hearing in 1993. Of the 44 Republican senators, a good 15 or more might be characterized as moderate to liberal. That group included Arlen Specter, Robert Packwood, and John Warner, all of whom voted against Robert Bork’s confirmation in 1987. Only four of the eight Republicans on the Judiciary Committee were pro-life and anti-Roe.
By the time of Sotomayor’s confirmation hearing in 2009, the number of moderate-to-liberal Republicans had dwindled to a half dozen or so, and all seven of the Republicans on the Judiciary Committee were pro-life and anti-Roe. The change is perhaps best encapsulated in Arlen Specter’s decision to abandon the Republican party—and his position as senior Republican on the Judiciary Committee—to become a Democrat just one month before Obama nominated Sotomayor.
It’s much easier to undertake to fight a nomination on ideological grounds when your party is broadly unified on ideology.