Honest senator

Matthew Hoy
By Matthew Hoy on July 14, 2009

That's probably an oxymoron, but I have been watching some of the confirmation hearings for Supreme Court nominee Sonia Sotomayor. I must say that I've found her walk-back from the "wise Latina" comments amusing -- and a little bit disconcerting. She's encouraging senators to ignore all of her controversial comments in speeches and troubling decisions and just trust what she says in her confirmation hearing -- yeah, right.

I also got a hearty laugh when one of the Democratic senators walked Sotomayor through all these sympathetic people she had ruled against (and one unsympathetic individual she had ruled for) to demonstrate that she wasn't letting President Obama's "empathy" standard dictate her rulings. During the hearings for Republican nominees, these same sorts of rulings would've been used by Democrats to demonize them. Don't expect the MSM to notice the difference this time around.

What I really wanted to highlight was a little fact-checking by Ed Whelan over at National Review's "Bench Memos" blog.

When Senator Lindsey Graham used the example of Republican support for President Bush’s D.C. Circuit nominee Miguel Estrada to make the elementary point that Republican concerns about Judge Sotomayor are based on her judicial philosophy, not on her Hispanic ethnicity, Judiciary Committee chairman Pat Leahy saw fit to respond in this way:

I'd just note, just so we make sure we're all dealing with the same facts, Mr. Estrada was nominated when the Republicans were in charge of the Senate, was not given a hearing by the Republicans. He was given a hearing when the Democrats took back the majority in the Senate ….

Well, let’s “make sure we’re all dealing with the same facts,” Senator Leahy:

1. President Bush announced his nomination of Estrada to the D.C. Circuit on May 9, 2001. Fifteen days later, Senator Jeffords left the Republican Party and flipped control of the Senate from the Republicans to the Democrats. Leahy surely remembers that well, both because Jeffords was his fellow Vermonter and because the flip made him chairman of the Judiciary Committee.

2. When Leahy says that Estrada “was not given a hearing when the Republicans were in charge of the Senate,” he is technically accurate in that Senate Republicans did not try to hold a confirmation hearing on Estrada’s nomination within its first 15 days. Had they tried to do so (even before the ABA completed its evaluation of Estrada), Democrats never would have permitted it.

To put this timing in context: During the Bush 43 administration, the average time from nomination to hearing for federal appellate nominees was 166 days overall, and 197 days while Leahy was chairman. No federal appellate nominee other than Clinton renominee Helene White (the beneficiary of a special deal) received a hearing in less than 30 days. And of President Bush’s first batch of nominees, the first to receive a hearing waited 62 days.

3. Leahy finally gave Estrada a hearing on September 26, 2002—more than 16 months after his nomination—but it was clear that Democrats would not vote Estrada out of committee. Once the Republicans regained control of the Senate in 2003, the Judiciary Committee promptly voted Estrada out of committee on a party-line vote (Republicans in favor, Democrats opposed). Democrats then filibustered his nomination on the Senate floor, defeating a record seven cloture votes.

4. It is outrageous of Leahy to give his grossly misleading account of the Estrada nomination in a context that vilely insinuates that Republican opposition to Sotomayor is based on her Hispanic ethnicity.

Leahy's attempt to excuse the despicable treatment meted out by the Senate to Miguel Estrada is outrageous. If the man had a conscience, he'd be troubled by such dishonest claims -- fortunately, he had his surgically removed decades ago.


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July 2009



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