Behind the Woodshed

The recent swearing-in of Sonia Sotomajor by Chief Justice Roberts as our newest Supreme Court Justice should have been a proud moment for the U.S. Indeed, it was a moment of national pride for most, especially those who hold dear the premise that “all men are created equal.” Her elevation to the Supreme Court was yet another statement to ourselves and the world that we are closer than ever to “meaning what we say,” and “doing what we say” when it comes to fully embracing our country’s fundamental values. Before long, we may just run out of “firsts”-the first this or first that.

Unfortunately, this historic moment was not without ugly controversy, unnecessarily tainted by an embarrassing Senate confirmation process that is broken. It was worse than watching sausage being made. It was downright discouraging-highly educated public officials, Democrats and Republicans alike, caught in a never ending “do-loop” of tit-for-tat politics. For almost 200 years, the Senate confirmation process was largely a formality if the candidate was qualified on the basis of judicial experience and intellect. Not any longer. Not since being “Borked” became a pop culture term.  Even those with the audacity to hope have to be concerned that the Senate’s partisan SCOTUS bickering does not bode well for the Obama administration.

So, behind the woodshed with the Senate, and particularly the Senate Judiciary Committee, which voted along party lines with only one exception, that being Senator Lindsey Graham. But before we do, President Obama deserves yet another finger wag for his contribution to the dysfunctional process. He did not do himself any favors when those on his short list of candidates were all female and he stated that he was looking for judges with “empathy” for the everyday person. Some things are just better left unsaid. Was he within the bounds of Presidential discretion? Historically speaking, yes. And he was at least consistent, having previously voted against Chief Justice Roberts’ confirmation on the basis that “he has far more often used his formidable skills on behalf of the strong in opposition to the weak,” despite acknowledging that Roberts was extremely well qualified.

Right or wrong-President Obama’s approach ran counter to what most may believe, and that is the Supreme Court nominee should be the absolute best attorney for the position regardless of gender and race. It is not true, of course. In the past fifty years, no nominee was nominated on this basis. Nor is it even capable of being proved true if it was the nomination standard. Any selection is inherently subjective and political. Just the same, with his choice of words and prior vote on Chief Justice Roberts, President Obama opened himself and his nominee up to attack on grounds other than Justice Sotomajor’s qualifications.

The woodshed, however, is reserved today for the two political parties. First, the Democrats deserve to be bent over for their refusal to acknowledge justified concern over comments made by Justice Sotomajor in speeches over the years. In many respects, the Democrat senators on the Senate Judiciary Committee whitewashed her earlier comments about a “wise Latino” woman perhaps being better able to make informed decisions than white men. These comments should concern Democrats just as much as Republicans. Yet, the softball questioning by Democrats in the hearing appeared designed to make Republicans look foolish for even doubting the meaning of her prior speeches. The gamesmanship was highly inappropriate. In the future, the political shoe will be on the other foot just as it was for the confirmation hearings for Kennedy, Alito, Souter and others. And unfortunately, the handling of Sotomajor’s confirmation process by Obama and the Democrats assured more of the same, not the promised change.

The Republican senators don’t escape unscathed either. In fact, their conduct in the hearings and subsequent vote earns them a swat on both cheeks. Many of their questions were not questions-they were speeches that bordered on being disrespectful, almost scolding in tone. When she was allowed to answer, her intellect and superior command of the law and facts were self-evident to the point that the questioner often came off as being overmatched. No matter how well founded the concern over Justice Sotomajor’s prior speeches, she explained herself and put her words in context. Was she believable? To some, yes. To others, no.

The better litmus test, however, shouldn’t be her explanation of her speeches. All judges bring their personal experiences to the bench. To believe otherwise is naïve. But like all judges and all of us with jobs that require us to put our personal biases and beliefs aside when doing our jobs, Justice Sotomajor is required to check her personal “baggage” so to speak at the courthouse door. The question is “has she?” Most Republicans begrudgingly admit that the answer is “yes.” Her body of legal opinions over two plus decades on the federal bench-more than any previous Supreme Court nominee in history-shows that her judicial philosophy is within the mainstream of Constitutional jurisprudence, and even conservative on many issues.

Why, then, the almost block voting against Justice Sotomajor? The answer is ideology, not logic. Apparently twenty plus years didn’t carry much, if any, weight. Many Republicans, including John McCain, acknowledged her qualifications for the Supreme Court but opposed her on the basis that they still didn’t trust her to exercise judicial restraint. One wonders how many senators could pass the equivalent litmus test for their dealings with lobbyists and special interest groups.

Not many. The intellectual dishonesty is a sad reflection of the times.

Today, the lowest rung on the ladder of public ridicule is reserved for the Republicans serving on the Senate Judiciary Committee. Perhaps they should ask their counterparts, the Democrats, whether boxers or briefs afford greater protection behind the woodshed. They should know.