Besides Ed’s important post below, his separate Bench Memos post is a must read. In it, he notes what is likely to become the Left’s mantra on this: namely, that if Sonia Sotomayor’s meanderings on Puerto Rican separatism — and her allusion to ”North American Congress” and “mainland Congress” because she couldn’t bring herself to utter “United States” — were such a big deal, why did Republicans fail to object when she was nominated to the Second Circuit in 1997?
This “waiver” argument is laughable. Judge Bork, of course, was defeated as a Supreme Court nominee after breezing to confirmation for the D.C. Circuit. I’d also note the following:
Justice Alito: confirmed by only 58-42 for the Supreme Court after being unanimously in 1990 for the 3rd Circuit.
Chief Justice Roberts: confirmed by 78-22 after being confirmed for the DC Circuit in 2003 on a voice vote.
Justice Thomas: confirmed by only 52-48 after being confirmed for the DC Circuit in 1989 on a voice vote.
The failure to raise issues in lower court confirmation hearings has never been a bar to raising them for the far more consequential seats on the Supreme Court.