Closing Arguments: Sotomayor vote based on ideology, not race

A nominee of impeccable credentials (Princeton, Yale law) and substantial experience on the federal appeals court is nominated to the Supreme Court. The judge receives a party-line vote in committee, and many in the opposition party reject the appointment when the full Senate votes.

Have partisanship and bias suddenly infected our judiciary? Hardly. Sonia Sotomayor, meet Samuel Alito. And therein lies the true tale of the politicization of the Supreme Court appointments process.

Last week, the Judiciary Committee forwarded the Sotomayor nomination to the full Senate on a 13-6 vote. Many Republicans have already said they will oppose her nomination when the Senate votes this week. Yet Sotomayor is not so different politically than the last two Democratic nominees - Justices Ruth Bader Ginsburg and Stephen G. Breyer, who received broad bipartisan support.

To see how things have changed, look at Orrin G. Hatch (R., Utah).

Hatch's opposition to Sotomayor in committee was his first vote against a Supreme Court nominee in his 32-year Senate career. Having once worked for Hatch, I know that he wants to give presidents the benefit of the doubt. However, he was troubled by Sotomayor's "wise Latina" comments, her willingness to import foreign law into constitutional interpretation, her cursory approval of a racial hiring program for firefighters in New Haven, Conn., and her incredible finding that the Second Amendment's right to bear arms - unlike almost every other freedom in the Bill of Rights - limits only against the federal government and not the states.

More than disagreement with the judge's views, Hatch's vote signaled frustration with the way Democrats have ruined the nominations process. Alito received no votes - zero - from Democrats on the Judiciary Committee in 2006, and Democrats filibustered his nomination before it was finally approved, 58-42.

Only four Democrats joined the Republican majority. News flash: Barack Obama was not one of them. He argued that senators could vote as they wished, based on "a judge's philosophy, ideology, and record" and without regard to the president's election.

In committee, Sotomayor actually did Alito one better, receiving a single Republican vote, from Lindsey Graham of South Carolina. No matter. Her defenders are attacking Republicans for politicizing the Supreme Court, and even threatening political retaliation.

"The lack of GOP support is profoundly unfortunate," said Arturo Vargas, executive director of the National Association of Latino Elected and Appointed Officials. "I believe Latino voters have developed quite a sophistication over the years, and they take note of who is supportive of their causes and community, and who is not."

This anger is misplaced. The Sotomayor vote is about ideology, not race. It is the culmination of decades of politicization of court appointments that was launched by Democrats with only fitful responses by Republicans.

In 1987, Senate Democrats voted down Robert Bork, a brilliant federal appeals judge and former Yale law professor, solely because of his legal views.

In 1991, the same crew ambushed Clarence Thomas (for whom I served as a law clerk) with outrageous claims of sexual harassment, and failed to stop his confirmation by only four votes.

In 2003, Democrats used the filibuster for the first time in U.S. history to oppose a slate of nominees to the lower courts - several of them minorities and women with high court potential.

Half of Senate Democrats voted against the nomination of John G. Roberts Jr., one of the finest Supreme Court lawyers of his generation, for chief justice in 2005.

For Republicans to simply defer to a president's pick now would amount to unilateral disarmament. The only way they can force a return to a sane process is to show Democrats that they are willing to respond tit-for-tat.

That won't stop the Sotomayor appointment, but it can reshape the debate on future nominees, which may not be that far off considering that five justices are age 72 or older.

In this week's vote, Republicans can use their "advice and consent" role not to attack Sotomayor, but to move constitutional law and the court in the right direction. They can demand nominees who reject the notion that the Constitution is a "living" document that changes along with society and who respect the right of the elected branches and the states to make most policy changes.

They can begin by focusing attention on the real culprit behind the politicization of the process: the Supreme Court itself.

The court now controls policy over subjects that many Americans hold most dear: abortion, affirmative action, religion in public life, even national security. Once the court removed many of these issues from the reach of Congress and the president, it was only natural that interest groups and politicians would shift the battle to the selection of justices.

To truly de-politicize the process, the president must select, and the Senate confirm, only justices who will remove politics from the court. But rarely does anyone in Washington want to reduce their own power.