Yes Lindsey, elections have consequences, including those of U.S. Senators and not just Presidents. And shouldn't the ratification of the U.S. Constitution, its amendments and the Oath to uphold it have consequences too?
[This is part three of DeVine Law series during Sotomayor nomination hearings. Parts one, two and columns prior to the hearings are here.]
I speak, of course, of Sen. Lindsey Graham (R-SC) and the impending advise and consent vote on the nomination of Judge Sonia Sotomayor to be an associate justice on the Supreme Court.
No senator better exposed the likelihood that President Barack Obama's first nominee to the nation's highest court would not abide by the required Oath to uphold the Constitution that he described as "fatally flawed."
Latina wiser than white and male Latino firemen raising funds for 13th Amendment required tax-payer funded abortions
The Palmetto State's senior senator excoriated Sonia for her blatantly bigoted brunch staple that her sex and ethnicity made her more likely to render better decisions that white men, reminding her that had he made a similar statement he would be bum-rushed from elected office.
Graham recounted the approbation of a fellow 2nd Circuit Court of Appeals jurist for her summary dismissal of the claims of Frank Ricci and other non-black firefighters that the U.S. Supreme Court reversed.
Finally, the Republican lawyer painstakingly and repeatedly questioned the former board member/fund raiser concerning her Puerto Rican Legal Defense Fund's civil court advocacy that the 13th Amendment's prohibition of slavery requires taxpayers to pay for the abortions of poor women.
Only a "yea" vote "let's her off the hook"
I defended Senator Graham from charges that he "let her off the hook" on the above, and especially the "slavery" question, given that he didn't produce a Perry Mason-like confession of some sort. But what I saw in the exchange was a very uncomfortable, yet effective Graham exposing a programmed liar denying knowledge of the obvious, over and over again.
Subsequent to that exchange, Byron York of the Washington Examiner uncovered documentation of then Lawyer Sotomayor's intimate involvement in the case, which were admitted into the record by Ranking Member of the Senate Judiciary Committee, Jeff Sessions (R-AL).
Yet, incredibly, despite the strong record established by Senator Graham and his other GOP colleagues on the Committee, it appears that he (and at least three other already announced Republicans) will, at last truly let her off the hook by voting to confirm the nomination.
All causes are not created equal
In an interview on Fox News Channel after his final questioning of Judge Sotomayor, Graham was asked to compare the Democrats' objections to Justice Samuel Alito for his brief college membership in the Concerned Alumni of Princeton.
Graham rightly objected to the Democrats' guilt by association attempts to tar Alito with statements by other alumni to which the nominee never expressed assent nor which were ever presented as group policy.
Yet, Graham takes the bait of the interviewer to make the following sweeping statement with respect to Sotomayor's slavery definition (approx. minute 41:10:
"...But I'm not going to disqualify a lawyer for embracing causes I disagree with. I would have loved to be a lawyer on the other side of that case showing that it is a bad act to force taxpayers to pay for abortions..."
But Lindsey, you are "on the other side" now! And by "other side" I do not mean Republican vs. Democrat.
Your "cause" is the Constitution, including the Civil War Amendments written in the blood of your South Carolina ancestors, and the likelihood the nominee will uphold the Oath. She would have the power to "interpret" the word slavery in accordance with her "cause" that would besmirch and insult the deaths of American soldiers in The War Between the States, and most horribly those held in human bondage across the Fruited Plain.
This was not a case where Lawyer Sotomayor was hired by a group to defend them in a criminal court, nor even as a Plaintiff in a civil case. At least in the former case, one would have a defensible excuse absent otehr evidence of her fealty to causes anathema to the cause of Liberty.
But no, in this cause, she is the Plaintiff.
You go on to say on FNC that she her judicial record doesn't reveal an activist judge (how could it unless she were a masochist given that she is bound by precedent) but that you were most "concerned" by her statements (see Wise Latina; judges making public policy; and basing decisions on European public opinion and foreign law).
You are rightly concerned with her public statements. They make the case against her confirmation as well. But in the matter of the PRLDF's slavery re-definition case, you have the greater statement of her time and money and work to raise money to re-define the Constitution! Now that's a statement!
But since she is a "lawyer embracing a cause you disagree with" you can't disqualify her? Maybe Rush Limbaugh should replace your "Vice-President (for John McCain)" and Senator "Grahamnesty" nicknames in favor of "Non-Sequi-Sena-tur".
Would no "cause" be vile enough for a lawyer to embrace to cause you not to embrace them? Does the term "advise and consent" mean so little to you?
Deference as unilateral disarmament
But Graham's incoherence reaches new heights when he conflates rulings based on the "heart" with "ideology" and then broadly re-defines and demonizes judicial philosophy as ideology.
Graham argued that Obama had voted against Justices John Roberts and Samuel Alito because they differed with him on ideology, and that going by that standard, he would not be inclined to support the presumably far more liberal Sotomayor.
"He used a standard, I think, that makes it nearly impossible for a person from the opposite party to vote for the nominee," said Graham.
"When I look at her record, her ideology, I'm deeply troubled," he added.
Ok, so he is deeply troubled by her ideology but objects to an Obama standard because it inhibits the appointment of nominees due to differing party ideologies.
In his FNC interview he declares that it would be "disastrous for the country" to apply Obama's standard.
Lindsey, what has been disastrous for the country have been the appointment of justices that embrace an ideological judicial philosophy that the Democratic Party embraces that views the Constitution as an impediment to overcome through rhetorical flourishes as they carry out Obama-desired fundamental changes absent ratification by We the People.
In other words LG, not all ideologies are equal. As National Review exclaims in objecting to a Washington Post editorial calling for GOP unilateral disarmament; "It's unreasonable for the Post to expect Senate Republicans to sign off on a nominee where there are legitimate questions for the sake of a one-sided comity."
Ideology vs. Intellect, Charater and Temperament
Incredibly, Graham's concern for an ideology that legalized the killing of millions of the unborn pales in comparison to his concern for the feelings of interns, pages, lawyers before the court and his fellow justices:
In his post-meeting news conference Graham also raised questions about Sotomayor's temperament. He said that while she was friendly in the meeting, he could not simply ignore reports from other lawyers she’s dealt with that she has a fiery temper.
“I think she does have the intellectual capacity to do the job,” Graham said. “But there's a character problem. There's a temperament problem that they — during the time they've had to be a judge, that they were more of an advocate than an impartial decider of the law. And I've got to find out, in my own mind” about her temperament.
Of course she has the intellectual capacity. It has always been a red herring conceit of the elites to suggest that the Constitution is written in some code only Yale and Harvard graduates and Nicholas Cage can discern.
Then, he conflates "character" with "temperament" after glossing over the real character issue inherent in an ideology that allows one to view the supreme law of the land as a "living" document that they can re-write over the objections of super-majorities of We the People in Constitutional Conventions, Both Houses of Congress and/or State Legislatures.
The urgency for "Non-Sequi-Sena-tur" is whether a Justice might have a bad temper? Would that more Republican Senators had some righteous indignation that caused them to lose their tempers as The Constitution is shredded by liberal judges appointed by Democrats.
Nomination and the consequences of the next election
Finally, let us return to the Washington Post's glee with Graham's un-Hatching of the old strategy we hoped had been buried:
Most important, he acknowledged that elections do, indeed, have consequences. Mr. Graham may yet vote against confirmation for Judge Sotomayor. But if he does, it seems likely to be on the merits as he views them and not as a ploy for political gain.
Senators don't owe presidents favorable votes on their nominees. But they do owe the president, the nominee and the American people a vote based on an honest assessment of the nominee's qualities and qualifications.
In my lifetime Republicans have never used Supreme Court nominations for political gain. Democrats nearly always do. The merits of the nominee's qualifications oil down to whether she can be trusted to uphold, rather than re-write the Constitution, as the other Democrats on the Court routinely do, and which President Obama and his party advocate.
Its about ideology Senator Graham, not whether the lawyer for the Appellant in her first case is rudely dressed down.
Your fear of disaster should Republicans and Democrats never vote for nominees of the other side is misplaced. What matters is the Constitution. The worse result of the stalemate you fear is that vacancies on the court go unfilled. So what?
Wouldn't it be great for the American people to finally take notice of a party that wishes to make law for life no matter what they believe? Wouldn't it be grand if, finally, the liberals are called to account for their subterfuge on an issue so vital to the nation yet so elusive in holding to account?
The table is set for just such a public epiphany. The grossly racist statements of Sotomayor caused her approval rating to drop 30 points even before the hearings so that all Americans, including women and Hispanics, oppose her nomination.
Americans don't like the race grievance spoils system that renders their hard work a nullity. Not only do we have Obama's empathy statement and Soto's racist statements, but we also have a real live case in which she applied her racist views against deserving of promotion firefighters because they weren't black.
We can hang Sotomayor around the Democrats' necks in the 2010 and 2012 election.
The hanging will be more powerful if more, rather than less understand that future elections have consequences as well, and that we can't abide more Sotomayors that will re-define slavery to enslave us all with their vile ideology.
Pat Buchanan spells out 2010 strategy with justifications.
"One man with courage makes a majority." - Andrew Jackson