Sen. Sheldon Whitehouse, D-R.I., addresses a crowd assembled outside the Capitol Building Wednesday afternoon to rally for Sotomayor's confirmation. (Credit: Amy Harder)
Sen. Sheldon Whitehouse of Rhode Island was one of the few Democrats on the Senate Judiciary Committee whom liberal legal scholars said embraced a more progressive judicial philosophy during Sonia Sotomayor's confirmation hearings (subscription). NationalJournal.com's Amy Harder spoke with Whitehouse this morning about the larger battle between conservatives and liberals over the judiciary. Edited excerpts follow.
NJ: Why do you think it is important to embrace a philosophy that counters what the Republicans have put forth?
Whitehouse: I think the backdrop to the Sotomayor confirmation is a larger struggle over the direction and control of the American judiciary. Part of why this interests me is that I've been watching it for years. The Republicans have done this in relatively plain view. They've very clearly made it their express purpose to find and groom conservative judges and put them on the court for the -- again -- often express purpose of influencing decisions and changing the direction of the American judiciary. So, the sort of manipulative hand of the Republican Party in judicial nominations is almost uncontested at this point. They would phrase it in a different way but they'd admit that they're doing that.
That then takes you back to the contest over the Framing. And, I think that on that, they're just plain wrong and it's harmful to the judiciary and harmful to American democracy to let that theory [originalism], which is in many respects a cover story for the strategic plan to influence and ultimately control the judiciary, to gain headway. It's wrong both as history and as justice.
NJ: How do you think Democrats and Sotomayor herself did in countering the philosophy Republicans have embraced and laid out to the American people?
Whitehouse: I don't think that she did. Her job was to present herself as a mainstream judge and to avoid controversy. And, I think she was very successful at achieving those goals, which left it to others to make the larger point.
NJ: And, by others, do you mean...
Whitehouse: Us.
NJ: Did you and your Democratic colleagues do that?
Whitehouse: I think we did OK. We had two jobs to do. One was to try to help confirm Judge Sotomayor. And there's a tendency in support of that purpose to try to sort of lower the temperature in the proceedings, avoid disagreement and just get her through. The second is to try to make the larger point or rebut the Republican judicial theory that supports their efforts to appoint and control the judiciary. They're a little bit in conflict with each other.
Continue reading Whitehouse: SCOTUS Confirmation 'Most Political Thing In Washington'.
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.
Sen. John McCain, pictured with President Obama in June, criticized the president
Tuesday over Samuel Alito's Supreme Court confirmation process as a vote on Sonia Sotomayor approaches this week. (Credit: Chip Somodevilla/Getty Images)
As the full Senate began debate on Sonia Sotomayor's confirmation to the Supreme Court on Tuesday, NationalJournal.com's Amy Harder spoke briefly with Arizona Republican John McCain, who announced his intent to vote no on Monday. He said he isn't concerned about alienating Hispanic voters, despite warnings from his more moderate colleagues that that's exactly what he and other Republicans are doing with their "no" votes.
McCain also denounced the politicization of the Supreme Court confirmation process -- and took a jab at his 2008 presidential opponent, Barack Obama, for being "one of the major contributors to that."
NJ: Are you concerned about alienating Hispanic voters in opposing Sotomayor?
McCain: My concern is that we appoint the most qualified people to the United States Supreme Court that I feel will act in accordance with the Constitution. I have no other considerations.
NJ: Hispanics have been increasingly identifying themselves with the Democratic Party; that doesn't raise any concerns with you?
McCain: I have always believed that I needed to do what's right, just as I believed that I had to what's right on immigration reform, just as I believed I had to do what's right on most every other issue.
NJ: In your official remarks Monday, you hearkened back to the Democrats' successful filibuster of appellate nominee Miguel Estrada in 2001. Throughout this nomination, Hispanic groups have said that Republicans should be supporting this nomination, just as Hispanics supported Estrada back then.
McCain: I didn't see any advocacy for Judge Estrada at that time, but maybe I didn't detect it.
NJ: What's your comment about Sen. Lindsey Graham, R-S.C., voting in favor of Sotomayor's confirmation?
McCain: I respect him. I respect all the views of all my fellow senators.
NJ: Do you think the process has become more politicized?
McCain: I think it became politicized a long time ago when then-Senator Obama vowed to filibuster Judge [Samuel] Alito and came back and tried to mount a filibuster against Judge Alito. I think it became politicized a long time ago, and then-Senator Obama was one of the major contributors to that.
Lindsey Graham (Credit: Rick Bloom)
Sen. Lindsey Graham thinks Sonia Sotomayor has a "temperament" problem. The South Carolina Republican grilled the nominee Tuesday over complaints from attorneys who have appeared before her in 2nd Circuit cases, and he raised the issue again with reporters Wednesday.
During a recess Wednesday afternoon, NationalJournal.com's Amy Harder spoke with the senator about Sotomayor's temperament, and about charges that his questioning of the nominee on this issue had sexist undertones. Edited excerpts follow.
NJ: You've been one of the GOP senators to ask the toughest questions of Sotomayor. Yet you've also said you may very well vote for her. How do you reconcile those two?
Graham: What I have done is try to point out things that I think the public needs to know and she needs to answer, like her temperament.
NJ: Is that one of your main concerns?
Graham: Well, as something people who practiced in front of her had to say about her, that's different than anybody else on that Circuit.
NJ: How would you answer the charges that your questions on her temperament are sexist?
Graham: I think there are female judges on that court who didn't have those criticisms. I think it's unique to her. I think if a Republican president picked a female nominee who had those things said about her, in terms of her temperament, the Democrats would have every right to confront that person.
NJ: Do you think the same thing would happen with a male nominee?
Graham: Yeah, absolutely. How can you look at it and not say, 'Hey, wait, what's going on here?' There are women on the 2nd Circuit, there are men on the 2nd Circuit. She stands out like a sore thumb when it comes to temperament.
Sonia Sotomayor may be the one in the spotlight, but this is also a special moment for Sen. Amy Klobuchar. The Minnesota Democrat, one of two women on the Senate Judiciary Committee, is taking part in her first Supreme Court confirmation hearings, which she calls a "great honor." NationalJournal.com's Amy Harder caught up with Klobuchar for a few minutes after the committee recessed for the day on Monday to get her take on the Republicans' comments so far and what she plans to ask Sotomayor in the coming days. Edited excerpts follow.
NJ: What is your reaction to Day One? Was there anything that struck you?
Klobuchar: How well she did when she spoke. In very succinct words, she not only told her life story but also, most importantly, her view -- her judicial philosophy of applying the law. And I think people have to hear that directly from her because there have been all these attacks that just aren't warranted by her record....
I thought Senator [Charles] Schumer's words about her -- when he choked up talking about her mom and her background -- was also very moving.
NJ: Have you been surprised by some of the issues the Republicans have and have not focused on? They didn't bring up Ricci v. DeStefano as much as one may have thought, considering the attention that case has received.
Klobuchar: They've made some oblique references to it. The one thing that I see that was interesting -- even though they disagreed and were using this as something of a platform for some political issues -- I thought they treated her with dignity and respect, which is important. Secondly, I thought that Sen. [Lindsey] Graham's comments were extremely interesting, because he clearly remains open to supporting her.... Even though he again said that he disagreed with many of her opinions and some of her statements in speeches, he made a point of saying that overall her record wasn't cause-driven and that he was open to supporting her.
NJ. He also focused a good deal on President Obama, and referenced the notion that elections have consequences.
Klobuchar: No one more than him in this country worked to get John McCain elected. But, he said, in the end Obama won, and that goes into his decision in terms of the fact that this is the president's nominee.
Continue reading Klobuchar: GOP Treated Nominee With 'Dignity' .
National Journal's Alexis Simendinger recently spoke with Dawn Cardi, a Manhattan lawyer and friend of Supreme Court nominee Sonia Sotomayor. Edited excerpts follow.
NJ: You and Sotomayor have been "first friends" for decades. Tell us something fun about her.
Cardi: I'll tell you a little, funny story. We play this amazingly competitive game of Scattergories every Thanksgiving [with my family]. One year, we picked her to be the judge. We fired her. We said, "You're never being the judge again. You're a terrible judge!" She was not listening to our arguments and she was ruling improperly, we thought, on the definitions for the words.NJ: What are your thoughts about the flap over your friend's role in the New Haven, Conn., firefighters case?
Cardi: What a bad rap, oh please. Give me a break. First of all, she didn't write the decision. Secondly, there were other judges who agreed with her. I have to believe, knowing her, there was precedent. Believe me, she's not out to hurt white firemen. Her family members are blue-collar people, come on! And, if this is the best [her critics] can come up with against her, bring it on!
NJ: Your friend says she's been lucky. How?
Cardi: There is this bit of luck, you know -- right place, right time. For example, when she was on the [State of New York Mortgage Agency] board, she met Benito Romano [the first Puerto Rican to serve as New York's federal prosecutor on an interim basis]. Then, when [Sen. Daniel Patrick] Moynihan was looking for a candidate [for the District Court in 1991], he went to Benito Romano, but he couldn't do it. So they asked him, 'Do you have other good candidates?' and she was one. Now that's luck, but it's also her ability. She stood out and impressed him.
Continue reading Some Friendly Insight On Sotomayor.
When President Obama announced Sonia Sotomayor as his pick for the Supreme Court, pundits warned Republicans of a trap -- attacking the first Hispanic nominee for the court could backfire, they said. That didn't stop former presidential candidate Tom Tancredo from going on cable news to decry Sotomayor's involvement with the National Council of La Raza, which he called a racist organization. Sotomayor herself was called a racist by Rush Limbaugh and then Newt Gingrich, who later withdrew his statement.
NationalJournal.com's Lucas Grindley spoke with La Raza's president, Janet Murguia, about whether these voices have harmed the Republican Party's standing among Hispanics, a growing part of the electorate.
"I think we've demonstrated a new level of engagement -- civic engagement and political engagement -- in this 21st century, and that's something that ought to be noted before people start spouting off falsehoods, like Tom Tancredo," she warned.
Murguia said critics like Tancredo are vestiges of a split in the GOP after the immigration debate, which she said has "paralyzed" Republicans' response to Sotomayor.
Read the interview with Murguia.
Former Sen. John Danforth has seen the ugly side of the Supreme Court confirmation process -- he fought bitterly for his friend Clarence Thomas against intense opposition from Senate Democrats and liberal groups almost two decades ago. Now, he says, it's time for the acrimony to end.
In an interview with National Journal's Kirk Victor, the Missouri Republican discussed the lessons of Thomas' 1991 proceedings and why the GOP should take the high road with Sonia Sotomayor now. Asked if Sotomayor's ethnicity has complicated things for Senate Republicans, Danforth said:
Yes, I think it has. But I would hope that even beyond that, Republicans would take the position that we have been witnesses to the worst kind of confirmation processes and that the time has come to stop it. It is just not worth doing it. We have seen how plain mean it can get and destructive of human beings. The fact that it is an Hispanic woman [creates] a political reason to have a more low-key approach to it, but I would hope that that would be a standard we would seek anyhow.
That wouldn't rule out substantive questions about the court and its role, Danforth said:
I would think that if Republicans did it right, they would have some well-designed, non-repetitious questions on how do you see the role of the judiciary; what do you understand original intent to mean; what do you understand stare decisis to mean; what do you understand the role of courts in deciding issues, narrow or broad. Those are all interesting questions on the role of the court. But I think that's as far as they should go.
Read the full interview here.
Who made Supreme Court nominee Sonia Sotomayor's ethnicity an issue? Ward Connerly, the founder of the American Civil Rights Institute, argues that it was President Obama.
Connerly, who has mounted several successful ballot initiatives combating racial preferences, told NationalJournal.com's Lucas Grindley that by seeking out a Latina nominee and narrowing the field of candidates, Obama has made it "very difficult to say that this person would be a good jurist."
As for Sotomayor's remark that "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," Connerly said that even if every identity were represented on the court, such an approach would still be inadvisable:
If we're relying on a person's experiences, then the law itself is subject to the collection of experiences that the nine judges on the court would bring to the arena. And if you carry that into every judicial setting, then the law becomes whatever any collection of jurists want it to be at any given moment based on their recollections of their experiences on the cases at hand. How can we have any kind of a civil society when the law is going to be interpreted in such a subjective manner?
Even Sotomayor herself is poorly served by the introduction of identity politics into the process, Connerly said.
"The appointing power really does marginalize the person being appointed because then they have to carry all of this baggage of whether they are truly qualified for that appointment," he said. "... She's going to have to prove it. That's really unfair."
Read the full edited transcript here.
When President Obama announces his choice to replace retiring Justice David Souter, Sen. Jeff Sessions will also be in the spotlight.
Sessions, R-Ala., who became the ranking member of the Senate Judiciary Committee when Arlen Specter, D-Pa., switched parties, has made clear that Republicans will be prepared to quiz the nominee to make sure that he or she will not be an "activist" on the bench. Such activist judges are "a threat to the rule of law" because they would allow their personal views to trump their commitment to the law, Sessions said.
Sessions spoke with National Journal's Kirk Victor in his office Wednesday on the confirmation process, the Roberts court and what goes into his vote. Edited excerpts follow. A condensed version appears in the May 23 National Journal.
NJ: The Judiciary Committee is the most rancorous, partisan panel in the Senate. Do you figure that it will remain that way for the foreseeable future?
Sessions: Well, it has some very skilled attorneys with strong views who are not shrinking violets. That's for sure. And nobody's a potted plant. I am hoping, though, that we could raise the level of confirmation discussion, questioning, and debate. I don't know why that can't be done.
NJ: Chairman Patrick Leahy, D-Vt., opposed your nomination for a District Court seat in 1986. How has that affected your relationship with him?
Sessions: It doesn't affect me at all. I just resolved not to worry about that when I came here. And I haven't. I have said over the years, though, that whether dealing with a Democratic nominee or Republican, they deserve a fair shake. Most people believe that, although sometimes they have forgotten it.
Continue reading Sessions: Republicans On Guard For An 'Activist'.
Sen. Jeff Sessions, R-Ala., demonstrated to a clutch of reporters on Tuesday that after more than two decades, he can still recount in detail the sting of being a judicial nominee on the losing side of a fight. In 1986, Sessions failed to win the approval of the Senate Judiciary Committee when President Ronald Reagan nominated the young U.S. attorney from Mobile to become a federal judge. Pennsylvania Sen. Arlen Specter, then a Republican, voted against him, as did former Sen. Joe Biden, D-Del, who was then the ranking Democrat on the panel. Sessions' detractors complained at the time that the nominee had made a series of racially insensitive remarks, calling the NAACP and the American Civil Liberties Union "un-American," among other things. But bygones are bygones, Sessions said this week. "We are past that."
Now 62, and in his third term in the Senate, Sessions this week won the support of his GOP colleagues to become the ranking member of the Judiciary Committee after Specter announced he was switching parties. In a plot twist fiction writers could appreciate, Sessions will now lead conservatives' scrutiny of President Obama's nominee to succeed retiring Supreme Court Justice David Souter. Sessions agreed that his experience as a nominee will give him him empathy -- among the attributes Obama values and conservatives decry -- although he was quick to say he will object to any Supreme Court pick who would substitute bias or personal preferences for the rule of law. Edited excerpts from National Journal's Alexis Simendinger follow. Visit the archives page for more Insider Interviews.
Q: Do you believe the opposition by then-Sen. Barack Obama to nominees John Roberts and Samuel Alito to join the Supreme Court offer you and Republicans more leeway to oppose President Obama's nominee to succeed Justice Souter?
Sessions: It doesn't affect me much. But I think somebody could argue that he filibustered Alito -- somebody with fabulous qualities like Judge Alito -- and somebody could say, "How can you complain about me filibustering?"
But I'm hopeful we'll avoid the filibuster approach. I hope the president will nominate somebody who will garner broad support. He should be able to. The defining issue tends to be for me whether the judge would subordinate his personal, political, social, moral views to the law. And if a judge won't do that, then I have serious problems with that judge.
Q: In other words, not an activist judge?
Sessions: That's how I define an activist judge -- one who allows his personal views to justify twisting the law to make it say what they want it to say. And when you start doing that, you undermine the awesome respect the law has and the willingness of millions of Americans to accept rulings even if they disagree with them. If they find that the emperor has no clothes, and that this is a political decision and not a legal decision, then the whole agenda is threatened -- the whole heritage of law.
The complete Q&A is after the jump.
Continue reading Sessions Says He's Looking For Judicial Restraint.
