(Credit: Julie Abramson)
Before David Souter's confirmation hearings in the summer of 1990, he so worried conservatives that White House Chief of Staff John Sununu had to mount a last-minute campaign assuring them that the New Hampshire judge would be a reliable vote for the right. During his testimony, Souter frustrated Republican Sen. Charles Grassley by telling him that "courts must accept their own responsibility for making a just society."
Sonia Sotomayor hasn't rattled liberals in quite the same way, but she, like Souter, didn't spend much time at the confirmation hearings defending her nominating party's judicial philosophy. Is there any chance these two tight-lipped jurists could share a propensity for disappointing their supporters?
Probably not, legal scholars say. What Sotomayor said during her confirmation "would not disable or disqualify her from taking a bolder position or a more progressive position if and when she becomes a justice," said Robert O'Neil, who clerked for Justice William Brennan and is founding director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia.
Read the complete story and view the latest in our ongoing political caricature series.
Updated at 4:03 p.m. on Aug. 6.
The Senate voted 68-31 to confirm Sonia Sotomayor to the Supreme Court this afternoon, clearing the way for her to become the nation's first Hispanic justice. Nine Republicans joined the entire Democratic caucus -- save ailing Sen. Edward Kennedy of Massachusetts -- in voting yes.
Sotomayor will be sworn in on Saturday.
The newest member of the Senate, Democrat Al Franken of Minnesota, presided. Leading up to the largely anticlimactic vote, Majority Leader Harry Reid of Nevada, Minority Leader Mitch McConnell of Kentucky and Judiciary Chairman Patrick Leahy, D-Vt., took to the floor to reiterate all the talking points they have been emphasizing for the past 73 days -- since Sotomayor's nomination on May 26. Alabama Republican Jeff Sessions, the ranking member of the Judiciary Committee, wrapped up the vote with closing remarks.
Our sister blog, Hotline On Call, has tallied up some notable numbers of this week's full floor debate. A total of 54 senators spoke. Of those lawmakers, 30 were Democrats, 22 were Republicans and two were independents who caucus with the Democrats. More than twice as many senators spoke in favor of President Obama's nominee as spoke in opposition.
Overall, senators spent 18 hours this week debating the nomination. Sessions took to the floor the most, speaking six separate times.
In a statement announcing his support for Sonia Sotomayor, Sen. Mark Begich, D-Alaska, emphasized that the Second Amendment is important to his constituents, but that he is "convinced she will not be an activist justice." He added, "I believe she will continue her practice of upholding the law and protecting our constitutional rights without bringing personal bias to her decisions."
Begich had been targeted by conservative interest groups as a potentially vulnerable red state Democrat, and fellow Alaskan Lisa Murkowski, a Republican, said he has likely been facing the same pressure from his constituents as she has on the issue.
Begich, who was elected last year, is known as being pro-gun. His "yea" vote is another sign of the National Rifle Association's diminished influence over this nomination, even after it announced its intent to score the vote.
With Sen. George Voinovich of Ohio announcing this afternoon that he will vote in favor of Sonia Sotomayor's confirmation, all Republican votes are accounted for: Nine will vote yes, and 31 will vote no.
The White House may tout this as a "bipartisan" victory, but conservative interest groups also see it as a victory for them. Curt Levey, executive director of the Committee for Justice, said the goal was to break 30 no votes, and that's just what happened Wednesday night when Sen. Lisa Murkowski of Alaska announced her intent to oppose Sotomayor -- the last Republican to do so.
In his remarks today, Voinovich continued a pattern among Republicans: denouncing the ideological considerations that Barack Obama cited in voting against George W. Bush's Supreme Court nominees as a senator, yet still expressing support for Sotomayor. "If I applied President Obama's standard, I would not be voting for Judge Sotomayor, his nominee," Voinovich said. "The president was wrong. His standard makes the whole nominations process an exercise in partisan politics."
Sen. Blanche Lincoln of Arkansas, a Democrat up for re-election in a conservative state, also announced this morning that she intends to vote yes. In her speech, Lincoln said that she has "heard from a number of Arkansans, including those in our legal community, who have expressed strong support for Judge Sotomayor, emphasizing her unique background, impressive resume and solid judicial record." Conservative interest groups saw Lincoln as potentially vulnerable on Second Amendment issues, but that didn't seem to resonate with her: She didn't mention the issue once in her speech.
The final vote could be 68-31 if all remaining Democrats vote yes (except the ailing Edward Kennedy of Massachusetts). Robert Byrd of West Virginia, who has been ill, is expected to attend, said Majority Leader Harry Reid, D-Nev. The office of Sen. Barbara Mikulski, D-Md., who has been hospitalized with a broken leg, said she will be voting today.
"American law does not permit the use of foreign law or international law to interpret the Constitution," Judge Sonia Sotomayor declared at one point in her confirmation testimony last month.
"Foreign law cannot be used as a holding or precedent or to bind or to influence the outcome of a legal conclusion interpreting the Constitution," she asserted at another point.
"I will not use foreign law to interpret the Constitution," she said at a third point.
But there was much less than meets to eye to Sotomayor's apparently categorical assertions. They seemed to say that she would never engage in what has become the five more liberal justices' practice of relying in part on foreign and international law to interpret the Constitution. But it's clear when one reads all the way through her various, somewhat muddled statements on the subject that she would do just that.
The key to the apparent contradiction is Sotomayor's redefinition of the word "use." It calls to mind Bill Clinton's classic word game: "It depends on what the meaning of the word 'is' is."
Sotomayor's statements that she would not "use" foreign law in constitutional interpretation turn out to mean only that she would not use it "in the sense of relying on decisions of foreign courts as binding or controlling precedent" (emphasis added), as she specified in her post-testimony, off-camera answers to senators' written questions.
That's a little bit like a baseball pitcher vowing not to "use" knuckleballs to win a game, when all he means is that he won't rely exclusively on knuckleballs, but rather will throw some fastballs and curveballs too.
Continue reading Sotomayor, Foreign Law And The Constitution.
Updated at 11:39 a.m. on Aug. 6.
Democrat Mark Begich is one of the few senators who haven't announced their votes on Sonia Sotomayor's confirmation. His fellow Alaskan, Lisa Murkowski, says the wait can't be pleasant.
Murkowski, a Republican, announced on the Senate floor Wednesday that her constituents' "overwhelming concern" on their right to bear arms compelled her to vote no. Begich, a newly elected Democrat in a conservative state, could be facing even more pressure, she noted later in an interview with NationalJournal.com.
Curt Levey, executive director of the conservative Committee for Justice, said voting against confirmation "would be a great way to show that he is not another Eastern liberal, that he hasn't been captured by Eastern liberals." His organization has been running ads in Alaska targeting both senators. In addition, the National Rifle Association is scoring senators based on their confirmation votes.
Sen. Sheldon Whitehouse of Rhode Island, a Democratic member of the Senate Judiciary Committee, told NationalJournal.com that it's possible a red state Democrat could vote no because of Second Amendment issues. "I think it's possible, and I think it would be a very strong signal about how politicized this process has become," Whitehouse said. Republicans want Sotomayor "to be an advocate for the expansion of the Second Amendment," he said. He added that the "fact that the NRA is involved pressing it only adds an exclamation point to it."
Begich's office told the Anchorage Daily News that he likely won't announce his vote until the official vote today, slated for 3 p.m. So, could he be the lone Democrat voting against Sotomayor's nomination? "That I don't know," Murkowski told NationalJournal.com. "... But if I have been receiving this kind of input from folks back home, I'm sure he has as well."
UPDATE: The original version of this report listed Sen. Blanche Lincoln, D-Ark., as undecided. She announced she would vote for Sotomayor's confirmation minutes after this report was posted.
Sen. Lisa Murkowski, R-Alaska, said on the Senate floor Wednesday night that her constituents' "overwhelming concern" about Second Amendment issues compelled her to vote against Sonia Sotomayor's confirmation. But that doesn't mean she thinks it was appropriate for the National Rifle Association to score the vote. Murkowski also speculated that Alaska's other senator, Democrat Mark Begich, is facing a similar amount of pressure from constituents on the same issue; he is one of just a few Democrats who have not announced their votes.
NationalJournal.com's Amy Harder spoke with Murkowski on Wednesday night. Excerpts of the interview follow.
NJ: You kept reiterating how important your constituents' concerns were. What were their primary worries?
Murkowski: I would say that the overwhelming concern coming from people back at home was specific to the Second Amendment -- a great deal of concern about where they felt Judge Sotomayor might take the protections that we recognized or provided under the Second Amendment.
NJ: Toward the end of your remarks, you said that your vote was not influenced by interest groups. I'm assuming you were referring to, among others, the National Rifle Association. Does the organization have any indirect influence on your vote, insofar as many gun owners are active in the NRA?
Murkowski: We were hearing from our constituents on this issue long before the NRA weighed in with their letter. And I will tell you, I've had conversations with my colleagues on both sides of the aisle. I've had conversations with people that are supporting Judge Sotomayor and opposing Judge Sotomayor. And those of us who represent constituents that are very protective about the Second Amendment right, I think it's fair to say that we are -- I am a bit concerned that the NRA weighed in and said they were going to score this. I don't think that was appropriate.
NJ: Why?
Murkowski: Because a vote on a Supreme Court justice, in my mind, should be free from those political interest groups that are going to pressure you and you're thinking, 'Oh gosh, it's going to ruin my score with the NRA,' or whatever group it is. That should not ever factor in when it is a vote of this consequence. I don't have any objection of them stating their position just as any other group would weigh in and say 'we support' or 'we oppose,' but this whole notion of scoring the vote -- it's my understanding that they have never weighed in and scored a vote. They should not have done it in this occasion.
NJ: Your fellow senator, Mark Begich, is one of a few Democrats yet to announce how they're going to vote. Do you think he is going to face similar pressure?
Murkowski: I can tell you that the feedback that we have gotten from people from this state has been overwhelming on this. I have to figure if they're sending messages to me, they're also pushing the send button to Senator Begich. I am quite sure that he is hearing from Alaskans who are quite -- they're really plugged in on certain issues, and certainly a nomination to the Supreme Court justice is right up there.
NJ: Do you think he would be the one Democrat to vote "no"?
Murkowski: That I don't know. That I don't know. I haven't heard whether he is going to be speaking to it, but if I have been receiving this kind of input from folks back home, I'm sure he has as well.
NJ: Your new position as the vice chairwoman of the Senate Republican Conference has put you in one of the key leadership positions. Conservatives say they have been watching how you were going to vote closely --
Murkowski: I think it's only because I'm the only one who was keeping it a secret. Everybody else blabbed, so there was no mystery there [laughs].
NJ: Has this new position put you in a role where you feel a bigger responsibility to represent the party's larger goals?
Murkowski: With this nomination that we had before us, I didn't survey the other folks on the leadership team to see where they were going. I paid attention to what everyone was doing and read their comments as we were developing the response to be delivered tonight. But I will tell you, it is such an important issue back home. For me, it doesn't make any difference whether I'm in leadership or I'm low man on the totem pole, this is something that I have to represent my constituents first.
• "Sonia Sotomayor stands on the verge of making history as the Supreme Court's first Hispanic justice, despite staunch opposition from Republicans who call her ill-suited for the bench," AP reports.
• Senate Majority Harry Reid, D-Nev., said Wednesday night on the Senate floor that the final vote on Sotomayor will be at 3 p.m. today.
• The vote will "likely land somewhere between the fairly bipartisan 78-22 vote that confirmed Chief Justice John Roberts in September 2005 and the much more partisan vote of 58-42 that confirmed Justice Samuel Alito in January 2006," The Hill reports. "Democrats split evenly, 22-22, on Roberts, but only four supported Alito and 40 opposed him."
• "Overwhelming Republican opposition... widens a partisan gulf that has lawmakers voting on ideology rather than qualifications," Bloomberg reports.
• "With the outcome of the Senate's vote preordained, senators of both political parties used a long day and night of debate over President Obama's first Supreme Court nominee to try to advance their larger goals," the Washington Post reports.
• "Democratic senators and leaders of Hispanic organizations sent a message to Republicans" Wednesday: "Their votes on" Sotomayor's "confirmation will matter," NationalJournal.com reports. "'To say that you cannot vote for this qualified Latina to be on the United States Supreme Court sends a message to us as a community that we will not forget,' said Sen. Robert Menendez, D-N.J., prompting the crowd -- assembled as part of a rally hosted by Sen. Ben Cardin, D-Md. -- to erupt in cheers."
• Politico has video from the rally Wednesday.
• "National Republican Senatorial Committee Chairman John Cornyn (Texas) dismissed as 'Democratic cheerleading' the idea that voting against" Sotomayor's confirmation "will negatively impact the standing of his party with Hispanics," the Washington Post reports.
Continue reading Top Nomination News.
Sen. Charles Schumer, D-N.Y., addresses a crowd assembled outside the Capitol Building. (Credit: Amy Harder)
Democratic senators and leaders of Hispanic organizations sent a message to Republicans today: Their votes on Sonia Sotomayor's confirmation will matter.
"To say that you cannot vote for this qualified Latina to be on the United States Supreme Court sends a message to us as a community that we will not forget," said Sen. Robert Menendez, D-N.J., prompting the crowd -- assembled as part of a rally hosted by Sen. Ben Cardin, D-Md. -- to erupt in cheers.
Menendez continued: "We know there are enough senators, including some of our Republican colleagues, who have set aside the pressures -- the pressures of the [National Rifle Association], the pressures of their leadership -- to join us."
Janet Murguia, president and CEO of the National Council of La Raza, took to the podium and touted the historical nature of this nomination. She reiterated the message Menendez sent to the almost 30 Republicans who are lining up against Sotomayor's nomination: "We will remember this," Murguia said. "This vote will matter."
Democratic Sens. Sheldon Whitehouse of Rhode Island, Charles Schumer of New York and Cardin took part in the rally as well. While Democrats have held numerous press conferences touting the nominee, this is one of the first rallies -- if not the first -- held in honor of Sotomayor. A crowd of 100 or more gathered in Upper Senate Park, just off New Jersey Avenue. Many of the attendees, holding signs and cheering throughout the rally, were representing liberal interest groups like the Service Employees International Union and the Leadership Conference on Civil Rights.
During the rally, Republicans were taking to the floor inside the Capitol Building explaining why they were voting against Sotomayor. Sens. Pat Roberts of Kansas, Roger Wicker of Mississippi and John Cornyn of Texas were among the anti-Sotomayor speakers.
Sen. Christopher (Kit) Bond of Missouri also spoke and announced he will vote "yes", joining six other GOP lawmakers who have already pledged to do so. "I could easily say, as Senator [Barack] Obama said, that I disagree with a nominee's judicial approach and that allows me to oppose the nominee of a different party," Bond said on the floor. "Luckily for President Obama, I do not agree with Senator Obama.... I agree that Judge Sotomayor has proven herself a well-qualified jurist."
More than 200 interest groups have submitted testimony in support of Sonia Sotomayor -- eclipsing the next-most-praised Supreme Court nominees 10 times over. Robert Bork and Clarence Thomas had previously shared the record, with 21 interest groups in support of each judge during their nomination.
Just eight groups submitted testimony to the Senate Judiciary Committee in opposition to Sotomayor, compared with 66 filing against Samuel Alito in 2005. The last nominees chosen by a Democratic president, Bill Clinton, didn't trigger nearly as much interest group attention: Ruth Bader Ginsburg motivated 10 groups to submit testimony and Stephen Breyer only six.
The chance to put the first Latina on the high court has no doubt contributed to the unusual level of interest, as did Obama's popularity on the left and the Democrats' first chance at a Supreme Court appointment since 1994. But the heightened involvement from interest groups is also a product of convenience: More than they have in the past, groups added their names to joint letters of support, some of which were signed by dozens of organizations. "It's easy to attach themselves to a letter," said Jeffrey Segal, a political science professor at Stony Brook University who compiled the data included in this graph. "There's no cost for them to do that."
The increased politicization of the Supreme Court confirmation process also contributes to the numbers. "It's an easy way for groups to rev up their base and to send out letters asking for support," Segal said. "It becomes a way for these groups to raise their visibility."
Editor's note: This is the fifth in a series examining historical data from a database compiled by Northwestern law professor Lee Epstein and her colleagues.
