Graham Plays Prosecutor in Judiciary

Posted July 14, 2009 at 6:39pm

Sen. Lindsey Graham’s (R-S.C.) vigorous prosecutorial questioning of Supreme Court hopeful Sonia Sotomayor was the sole bright spot in an otherwise difficult day for Senate Republicans on Tuesday, who struggled to use Sotomayor’s confirmation hearings as a forum to restart the culture wars of the recent past.

Graham’s emergence Tuesday as the leading attack dog on Sotomayor stands in stark contrast to his performance during Monday’s opening remarks, when he frustrated many of his GOP colleagues by saying that short of a major misstep, her confirmation was a done deal.

In a series of rapid-fire exchanges on abortion, race, the death penalty and her own temperament, Graham repeatedly accomplished what his colleagues could not during a nearly full day of questioning — throwing Sotomayor even slightly off her script.

Graham used a classic tactic of trial attorneys, asking easy, innocuous questions in order to lead Sotomayor down a series of rhetorical blind alleys where she found herself in a position of having no easy answers to avoid Graham’s questioning.

For instance, during a particularly pointed line of questioning on her speeches, Graham, a military reservist and former Judge Advocate General officer, began by quipping, “Don’t become a speechwriter if this whole law thing doesn’t work out.— He then slowly walked Sotomayor through a series of questions regarding the definitions of “relativistic— theory versus “originalist— interpretations. He then pivoted and asked her if, in fact, the Constitution provides for abortions to be legal.

A clearly startled Sotomayor hesitated before saying, “The word abortion is not in the Constitution, but the Constitution does have a broad provision,— at which point Graham quickly cut her off.

“And that gets us to the speeches. … That’s what drives us here. That’s my concern,— Graham said, arguing that the reason her previous statements are so important is because of the open-ended nature of some of the Constitution’s more powerful provisions.

[IMGCAP(1)]The exchange between Graham and Sotomayor stood in stark contrast to those of his Republican colleagues on the Judiciary Committee. Aside from Sen. Chuck Grassley (R-Iowa), who largely stuck to parochial concerns regarding eminent domain laws, Republicans sought to use Sotomayor as a foil for a much larger fight over abortion, race relations, capital punishment and other culture war issues that harken back to the GOP’s heyday in the 1990s.

Often barely pausing for Sotomayor to finish her answers, Sen. Jeff Sessions (R-Ala.), the committee’s ranking member, hammered away at broad philosophical themes such as affirmative action and gun rights.

Sessions used much of his 30-minute question period to press Sotomayor on her 2002 comment that a “wise Latina— would arrive at a better conclusion in certain cases than a white man.

Sotomayor called the statement an unfortunate turn of phrase.

“I was trying to play on … words. My play fell flat. It was bad because it left an impression that I believe that life experiences command a result in a case. But that’s clearly not what I intended in the context of my broader speech,— Sotomayor said, arguing that her record as a judge demonstrates that she has acted fairly and without bias.

But Sessions was undeterred and continually came back to her statements, brushing aside Sotomayor’s argument that “I believe my record of 17 years does demonstrate fully that … I have done what the law requires.—

Yet Sessions wouldn’t back down: “If you’d been saying that with clarity over the last few, 15 years, we’d have a lot fewer questions today.—

Unlike Sessions, Sen. Orrin Hatch (R-Utah) seemed to fully engage Sotomayor during his question period, initiating a near constant back-and-forth with the nominee on her rulings on gun rights and affirmative action, as well as abortion and other issues.

Sessions and Hatch also repeatedly invoked the failed nomination of Miguel Estrada by former President George W. Bush to become a circuit court judge. Estrada’s nomination was blocked by Democrats on several occasions, largely because the administration was unwilling to release a host of documents Judiciary Committee members were demanding.

Sessions and Chairman Patrick Leahy (D-Vt.) engaged in several terse exchanges over Estrada, prompting Sen. Dianne Feinstein (D-Calif.) to openly question why he was being brought up.

“I’m a little puzzled why Mr. Estrada keeps coming up. … Mr. Estrada wouldn’t answer questions when put to him. … This nominee has been very straightforward,— Feinstein said.

Sessions also mentioned Sotomayor’s Puerto Rican background on several occasions, which — combined with the repeated references to Estrada as well as another judge on the 2nd Circuit — caused several national Latino leaders to bristle.

“Sen. Sessions’ comment on Puerto Rican ancestry is baffling,— said Lillian Rodríguez-López, president of the Hispanic Federation. “First, he focuses on the need to uphold the law based on the Constitution and legal precedent, and then he expects our judges to think exactly alike based on a shared ethnicity.—

During his round of questioning, Minority Whip Jon Kyl (R-Ariz.) made little headway in throwing Sotomayor off her game despite repeatedly questioning her about previous statements she had made that conservatives charge demonstrate she is biased toward minorities, women and the poor.

At one point, Kyl asked Sotomayor whether she agrees with President Barack Obama’s contention that judges should demonstrate “empathy— for the poor or minorities.

“No, sir,— Sotomayor said, arguing that while judges should be able to understand the implication of their rulings, that should not dictate how they rule.

Until Graham’s cross-examination of Sotomayor, the most aggressive questioning of the day had come from Democratic Sen. Russ Feingold (Wis.), who pushed her several times on her position on gun rights.

Feingold repeatedly came at the question of whether citizens have a right to bear arms, ultimately prompting Sotomayor to quip, “You are a very eloquent advocate. … But a decision of what the Supreme Court will do will come up before the justices in great likelihood in the future.—

The first round of questioning is scheduled to resume Wednesday.