ConfirmThem

I don't see Sotomayor being as liberal as Ginsberg, so it's a bit inconsitent.

But given the Alito nomination, there's no other option really.

I think the Senate Republicans are sending a message to Obama. Sotomayor is as left as they will accept in terms of Supreme Court nominations. As Lindsey Graham noted, Obama set a new standard by voting against Roberts and Alito based on ideology. That opened the door for all of his judicial nominees to be judged in the same manner. Based on credentials, Roberts and Alito deserved almost unanimous bipartisan support. Neither got it. Now, hopefully, Sotomayor will only a get a minimum of Republican support. If Obama wants more Republican votes in the future, he should admit his mistake about voting against Roberts and Alito and not nominate any liberal academics or politicians. He should stick to proven jurists with good credentials, like Roberts, Alito and Sotomayor.

I very respectfully disagree with BoBo. First, Obama will never be able to attract *more* Republican votes for his future nominees through any means, and certainly not by announcing that he was wrong to vote against Roberts and Alito. (Besides, I can't imagine the president *ever* deeming those votes mistakes anyhow.)

As I've written earlier, today there's just too much "base"-oriented special-interest and advocacy money now at stake for any more than just a small number of (largely purple-state) senators of one party to ever vote in favor of *any* SCOTUS nominee of a president from the other party. The culture-war issues are just too huge and well-publicized now. So as a result, there is *no* way any longer for *any* nominee -- regardless of credentials -- to gain anything even remotely close to unanimous bipartisan support. That's why I keep saying that 70 Senate votes to confirm is pretty much the ceiling from now on -- for either party. Roberts' vote was a high-water mark, just as Ginsburg's vote before him was a high-water mark as well (and Scalia prior to that).

And that's really, in my opinion, the correct explanation for why Hatch is voting against Sotomayor, zendari. That's why Hatch is willing to vote against a nominee (Soto) who is generally thought to be *less* liberal (by everyone other than folks like Charmaine Yoest or Wendy Long whose groups have it in their interest to always insist that any current nominee they're opposing is the "most extreme" one ever) than a nominee (Ginsburg) whom Hatch actually voted in *favor* of, back in '94. It's been 15 years since the last Dem nominee, and times have changed in a major way. The same thing will happen in the opposite fashion the next time there's a Republican president and a GOP Senate -- you'll see 60-70 votes to confirm at most.

So BoBo, I actually think Senate Republicans are sending Obama the exact *opposite* message. I don't think they're at all conveying the message of, "Sotomayor is as left as we'll accept in terms of nominations," since the message they're *also* sending to the public -- loud and clear -- is, "she's a proven jurist, she's not a liberal academic or politician, but you know what? We *still* won't vote in favor of her." Yes, they're choosing not to filibuster her, but they don't have the numbers to filibuster *any* nominee. What they're basically telling Obama is, "After Alito, it doesn't matter any longer *who* you nominate. The vast majority of our caucus will *never* vote for any of your SCOTUS nominees unless you select an out-there nominee whom your Dem base would never support anyhow (e.g., Consuelo Callahan or Miguel Estrada or Maureen Mahoney or Michael McConnell or Jose Cabranes)."

This reaction by the GOP may actually give Obama the political cover to tack to the left with future nominees -- *and* it would allow him in the future to claim (yet again, as he has done with his Cabinet and elsewhere) that he tried and failed at bipartisanship. He'll always be able to disingenuously point to the fact that Sonia was a "bipartisan" pick because Bush 41 appointed Sonia to the district court. Plus, remember, even most commenters on this thread agree that he could have picked someone a heck of a lot *more* liberal than Sotomayor. If anything, Obama will be able to cast himself to the public as a victim in the future, saying (as he nominates a far-more liberal nominee), "look, no matter which nominee I throw up there, these obstructionist Republicans ("party of no," blah, blah blah) won't support him/her." It's all about messaging, and if the perception out there is that the GOP objects to *any* of Obama's nominees, it could confuse the electorate.

Regardless, though, I would be surprised if Obama's next nominee, proven jurist or not, is *not* more liberal than Sotomayor -- the only remotely possible nominees who might be less liberal than Sonia would be Merrick Garland and Cass Sunstein.

I agree with most of what you said. It's mostly a repeat of 2005 (replace Obama with Bush, and Obstructionist party of no Democrats with Republicans). The filibuster is still a losing tactic.

The political manuevering is the same too; you had guys like Obama and Evan Bayh reflex vote against John Roberts for their Presidential campaigns, and you had guys like Leahy playing the "I'm a reasonable guy because I voted for John Roberts" card at the Alito hearings.

The "Roberts is as far right as we can go" message from those 22 Democratic senators didn't really work then; they got a more conservative (by judicial record) Sam Alito.

They had a slight advantage because they could endlessly harp on about Casey, but these things hardly matter when nominees are oppposed within minutes of being announced.

If Obama wants a 'consensus' nominee, he can pick Ed Prado. Otherwise, he probably knew going in that he took a shit on the pot 4 years ago.

Any admission of 'mistake' on the 2005 nominations is pointless. Neither Obama or Biden will ever be a Senator again most likely, so its empty words.

http://blogs.usatoday.com/oped/2009/07/opposing-view-a-confirmation-conversion--nominee-lacks-deep-convictions-needed-to-resist-judicial-activism--by-jeff-session.html

The gist of his remarks is that in the hearings she repudiated everything she had demonstrated over the years, and he could not support the judge she had proven she was rather than the one she claimed she would be.

Roberts was 22/22, and Alito was 40/4.

13 no votes
Mitch McConnell and Jim Bunning - Kentucky
John Cornyn - Texas
Jon Kyl - Arizona
Robert F. Bennett and Orrin G. Hatch - Utah
James M. Inhofe - Oklahoma
Thad Cochran and Roger Wicker - Mississippi
John Thune - South Dakota
Sam Brownback and Pat Roberts - Kansas
Jim DeMint - South Carolina

5 yes votes
Susan Collins and Olympia Snowe - Maine
Lindsey Graham - South Carolina
Richard Lugar - Indiana
Mel Martinez - Florida

Hutchinson, Voivonich, Murkowski might be yes votes; the final result will probably be something like 32/8 or 30/10, which I can live with.

The seven senators that I think may vote yes (that haven't announced yes) are:
Murkowski
McCain
Hutchison
Alexander
Voinovich
Bond
Grassley

My guess is that Murkowski and Voinovich vote yes and that's it. The final vote will be 66-33 (with Ted Kennedy not there)

The only reason why Roberts got 22 Democratic votes was because there was another nomination to still come. Had Rehnquist not died and Roberts was to be confirmed for O'Connor's seat, there would have been 35 no votes against Roberts.
People like Pat Leahy voted for Roberts for two reasons.

1. As you said, they could argue that they weren't obstructionists for the second nominee when they voted to confirm Roberts.
2. They could have some influence in swaying Bush's nominee.

Where I disagree with you some is that it didn't "work". Initially it did work. Bush picked Harriet Miers, who was someone apparently suggested by Harry Reid himself.

This nomination, as we all know caused justifiable outrage by most conservatives. Miers was about the worst serious choice Bush could have made (except possibly Karen Williams, but that is only in hindsight.)
On a side note, Reid and Schumer dropped the ball and made a political blunder. What they should have done (from their perspective) once they saw conservatives up in arms was to go to Bush and tell him that they could guarantee 35 Dem votes for Miers (and that no Democrat would support any Republican filibuster). Bush then would only need 15 GOP votes to confirm Miers, which he would certainly get. I don't know if the Dems believed the rumors that the administration was telling GOP senators at the time that Consuelo Callahan was going to be nominated if Miers failed (obviously to scare GOP senators into supporting Miers).

I agree with JamesSmith130 -- probably something like only two of those remaining undeclared GOP senators end up voting for Sonia. The rest won't. I'll actually go out on a limb and say the final vote will be 65 votes to confirm (not JamesSmith130's prediction of 66); I suspect that at least one other Dem won't make the vote for one reason or another (figuring the final vote isn't in dispute). It is summer, after all.

In other news, Jim Bunning finally has announced that he is retiring. This is actually good news for the GOP's chances of holding his seat. And it's even better news for all Americans -- although I'm a baseball fan (and I thought Bunning deserved to be in the Hall of Fame, so I was glad he made it), he's been a terrible senator.

http://www.google.com/hostednews/ap/article/ALeqM5huyApqmCqq9U5Hw9jP5IYR...

"Grassley said he wasn't sure Sotomayor understands the rights Americans have under the Constitution, or that she will refrain from expanding or restricting those rights based on her personal preferences.

"There's no doubt that Judge Sotomayor has the credentials on paper to be a justice on the Supreme Court. But, her nomination hearing left me with more questions than answers about her judicial philosophy," Grassley said in a statement.

He said his vote to confirm Souter "has come back to haunt me time and again." He added that Sotomayor's vague answers on the constitutional separation of powers "left me with the same pit in my stomach ... that I hoped to have cured with his retirement."

Souter was named by GOP President George H. W. Bush, but turned out to be more liberal than most Republicans wanted.

Sen. Mike Johanns, R-Neb., also announced Monday he would vote against Sotomayor, saying he was concerned she wouldn't set aside her biases and rule impartially. In a statement released by his office, Johanns said he was particularly troubled about Sotomayor's stance on gun rights."

M E M O R A N D U M

TO: Reporters and Editors
FR: Beth Levine, for Senator Grassley
202-224-6197
RE: Sonia Sotomayor nomination
DA: July 27, 2009

Senator Chuck Grassley today released the following comment regarding his decision to vote against the nomination of Judge Sonia Sotomayor to be an Associate Justice on the United States Supreme Court .

“I’ve had the opportunity to vote on many judges and Justices since becoming a member of the Senate Judiciary Committee. We confirmed a great number of them. I had hoped to be able to vote for Judge Sotomayor to be the next Justice on the Supreme Court, but after a thorough review of the hearing record and her cases, speeches and writings, I have come to the conclusion that I cannot support Judge Sotomayor’s nomination.

“My vote must be based on the nominee’s respect for and adherence to the Constitution and judicial restraint. I question if Judge Sotomayor will be able to set aside personal biases and prejudices to decide cases in an impartial manner and in accordance with the Constitution.

“At her confirmation hearing, I asked specific questions about the property rights of private citizens afforded by the Fifth Amendment. My colleagues asked detailed questions about the now famous Ricci case, the right to privacy and the Second Amendment right to bear arms. I was not convinced that Judge Sotomayor understands the rights given to20Americans under the Constitution, or that she will refrain from expanding or restricting those rights based on her personal preferences. I am not certain that Judge Sotomayor won’t allow those personal beliefs and preferences to dictate the outcome of cases before her. There’s no question that nominees have become quite adept at dodging our questions, but her lack of clear and direct answers to simple questions regarding the Constitution were troubling. Some of her answers were so at odds with statements she has made over the years, that it was difficult to reconcile them.

“Nearly 20 years ago, then Judge David Souter talked during his confirmation hearing about courts “filling vacuums” in the law. That concept greatly worried me, because courts should never fill voids in the law left by Congress. Since Justice Souter has been on the Supreme Court, his decisions have proven that he does believe that courts do indeed fill vacuums in the law. My vote has come back to haunt me time and time again. So, I’ve asked several Supreme Court nominees about courts filling vacuums at their hearings. Her lukewarm answer left me with the same pit in my stomach I’ve had with Justice Souter’s rulings that I had hoped to have cured with his retirement, and reinforced my concerns with her hearing testimony, cases and speeches.

“Only time will tell which Sonia Sotomayor will be on the Supreme Court. Is it the judge who proclaimed that the court of appeals is where “policy is made,” or is it the nominee who pledged “fidelity to the law?” Is it the judge who disagreed with Justice O’Connor’s statement that a wise woman and a wise man will ultimately reach the same decision, or is it the nominee who rejected President Obama’s empathy criteria?

“There’s no doubt that Judge Sotomayor has the credentials on paper to be a Justice on the Supreme Court. But, her nomination hearing left me with more questions than answers about her judicial philosophy, and I cannot support her nomination.”

1. "develop virtual real estate"--I love it!

2. My hope is that she receives fewer than 70 votes (even if it's because 1 or 2 senators don't make the vote). I realize it's only a moral victory, but I honor the senators who are voting no.

Yes, elections have consequences. Yes, the president may nominate whom he wishes. Yes, Sotomayor is qualified on paper. But I agree with what Grassley, Sessions, Hatch and the others have to say.

Sotomayor was passed out of committee as expected by a 13-6 vote with only Graham voting for her on the Republican side.

http://thehill.com/leading-the-news/sotomayor-sails-through-judiciary-co...

"One surprising bit of criticism on Tuesday came from Wisconsin’s two Democratic senators, Russ Feingold and Herb Kohl, who criticized the lack of forthrightness in recent Supreme Court nomination hearings. Since the watershed hearings of Robert Bork in 1987 and Clarence Thomas in 1991, nominees are now coached to such an extent by presidential administrations that candor has suffered, Kohl and Feingold argued.

“I’ve said before that I do not understand why the only person who cannot express an opinion on virtually anything the Supreme Court has done in recent years is the person from whom the American public most needs to hear,” Feingold said. “These hearings have become little more than theater, where senators try to ask clever questions and nominees try to come up with cleverer ways to respond without answering.”

But Arlen Specter (D-Pa.), a former committee chairman, cautioned his fellow senators, explaining that Bork answered so many questions forthrightly at his 1987 hearing that his nomination was scuttled. Specter said the Senate should be careful not to overreact and demand so much from nominees that the process is poisoned.

“If a nominee was rejected for not answering questions, it might set a standard,” Specter said."

He made a lot of interesting comments today! (I cleaned up a few typos in the five paragraphs below)

http://www.politico.com/blogs/glennthrush/0709/Specter_Wise_Latina_remar...

"Specter, the Pennsylvania Republican-turned-Democrat, was relegated to the end of the podium this morning, but offered a cogent, concise post-game wrap-up moments before the committee approved her nomination 13-6.

"I didn't find fault with the 'wise Latina' comment, I find it commendable," said Specter, the first Senator to flat-out endorse her controversial comment, adding: "There's nothing wrong with a little ethnic pride."

That said, he added: "The one regret I have about Judge Sotomayor's testimony was her extreme caution" and said it was spurred by the misperception that Bork was ambushed 22 years ago by liberal activists.

"The myth was that he was 'Borked' -- I don't know if that's a verb or a participle -- except I know it's not true," said Specter, whose "no" vote as a Republican helped doom Bork.

"Judge Bork answered a great many questions because of his writings and his background. He believed in 'original intent' and he didn't believe the protection clause extended behind race and ethnicity -- [that it] did not apply to women... He did not believe in due process of law.""

http://www.nytimes.com/2001/06/26/opinion/judging-by-ideology.html

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

http://www.chron.com/disp/story.mpl/breaking/6551745.html

"Texas Sen. Kay Bailey Hutchison announced Tuesday that she would oppose confirmation for Supreme Court nominee Sonia Sotomayor after the Senate Judiciary Committee voted to send the jurist's nomination to the full Senate for confirmation next week.

Hutchison, who had opposed Sotomayor's elevation to the U.S. Court of Appeals in 1998, said the New York judge's position on the Second Amendment raised the possibility that she might not support an individual right to bear arms .

The senator also expressed concern about Sotomayor's statement at a Duke University law school forum four years ago that legal “policy” was made by federal appeals courts.

“I believe judges should interpret the law, not make it,” Hutchison said in a statement issued late Tuesday.

The four-term senator announced her position as she prepares to challenge Texas Gov. Rick Perry for the GOP gubernatorial nomination in Texas' primary next March, a contest where conservative credentials and gun ownership rights could be issues."

Voinovich seems disgusted with conservatives in the Republican Party:

http://politicalticker.blogs.cnn.com/2009/07/28/voinovich-the-gops-being...

""We got too many Jim DeMints and Tom Coburns," Voinovich told the Columbus Dispatch Monday. "It's the Southerners….

"They get on TV and go 'errrr, errrrr,'" he said, according to the paper. "People hear them and say, 'These people, they're Southerners. The party's being taken over by Southerners. What they hell they got to do with Ohio?'""

http://www.jsonline.com/news/milwaukee/51897932.html

"Federal Appeals Court Judge Terence Evans has notified President Barack Obama that he will move into semi-retirement Jan. 7 - the 30-year anniversary of when he first took the federal bench.

Evans, 69, of Milwaukee, sent a letter to Obama this week announcing his move to "senior status" - a position where he will take on a smaller caseload. Federal judges on senior status continue to draw their full pay.

Evans wrote to Obama, "My only regret is that the time has passed too quickly. But the good news is that in January I'll begin what I hope will be a long period of service as a judge in senior status."

Evans, who was appointed to the district and appeals courts by Democratic presidents, wrote he will continue to take cases on the 7th Circuit in Chicago but also sit on cases in the 9th Circuit - in the western United States. He said he will hear district court cases in Milwaukee, Chicago and Seattle."

Obama can fill 24 COA seats in his first two years if he tries. At the moment, though, the Sotomayor confirmation and health care reform seems to be keeping him pre-occupied -thank heavens! He has only nominated 6 replacements so far.

Here is the breakdown:

First Circuit - 1
Second Circuit - 5
Third Circuit - 2
Fourth Circuit - 5
Fifth Circuit - 1
Sixth Circuit - 1
Seventh Circuit - 2
Eighth Circuit - 0
Ninth Circuit - 3
Tenth Circuit - 1
Eleventh Circuit - 1
D.C. Circuit - 2

Who are the "6 replacements" whom Obama has nominated so far to COAs? I only count five (but I readily admit I may be missing one):

Hamilton to 7th, replacing Ripple
Davis to 4th, replacing Murnaghan
Lynch to 2nd, replacing Straub
Martin to 11th, replacing Anderson
Greenaway to 3rd, replacing Alito

the Bush nominee that he added back in the mix as a show of bipartisanship like R. Gregory or H. White.

I accidentally included Sotomayor on the list - sorry. You are right - only 5 replacement nominees.

Is that Appeals Court now going to turn to the left big time?

Maryland and Virginia have two Dem senators. North Carolina has one Dem senator. South Carolina has Lindsey Graham. It seems to me that Obama will nominate whichever left-wingers he wants here.

A SC nomination and healthcare seem like poor excuses why the nominations have not been made. That is pretty much gross incompetence.

I'm pretty sure that within a day, I could provide a list of names who are possible replacements for these slots by doing a search on the internet. Then you simply need people to vet the possible nominees and get clearance from a senator from those states.

I'm also rather upset that the Alito seat was not filled by Bush. How the heck did that happen?

At present, there are five seats open on the Fourth Circuit:

Maryland - 1
Virginia - 1
North Carolina - 1
South Carolina - 2

The Maryland seat will be filled soon with Andre Davis, whose nomination has already passed out of committee and is just waiting a full floor vote in the Senate. Virginia's two Democrat senators have officially announced their choice for that seat, so it seems likely that a nomination for that seat will be quickly forthcoming.

Obama is most likely to have problems filling the North Carolina and South Carolina seats, because both states have Republican senators. IMHO, one of the South Carolina seats will be transferred to North Carolina for two reasons. One has to do with the fact that South Carolina's population does not warrant as many seats as it has. Strom Thurmond during his tenure on the SJC made sure that SC was over-represented, and Obama will want to correct this aberration. The other reason has to do with the fact that NC has only one Republican senator, while SC has two. Obama will be better able to influence the political ideology of any nominee from North Carolina due to this dynamic.

My supposition is that the following will happen: two nominees will be named within the year for North Carolina as a compromise (one moderate to appease Republican Burr, one liberal for Democrat Hagan), but a South Carolina nominee will be a long time in coming due to the conflict between Obama and DeMint. I don't think Graham will be able to convince DeMint to accept a moderate or liberal Obama nominee.

http://trailblazersblog.dallasnews.com/archives/2009/07/hutchison-declar...

"Sen. Kay Bailey Hutchison told radio talk show host Mark Davis of WBAP today that she will resign from the Senate this fall to focus on her run against Rick Perry in the Republican primary for governor.

The actual leaving of the Senate will be some time, October-November, in that time frame," she said.

It's her most definitive statement that she will resign, and it's the first time she has put a specific time frame on her departure.

Hutchison said she wanted to stay in Washington long enough to represent the state on key issues Congress is working on, such as health care and climate-change legislation."

You raise some great points about presidential multitasking and the ability to get things through, particularly given that Obama has such a massive majority in the Senate. Interestingly enough, it's not Leahy's fault that the nominees haven't moved; he's been expediting hearings on all of Obama's COA nominees and getting them in and then voted out of committee really quickly. So it *is* more a combination of Obama's people dragging their heels on vetting and offering nominees up, and also of course Reid's inability to actually hold votes on them (the GOP senators haven't allowed a single nominee through yet; there are holds on all COA nominees right now -- this is pretty much how judicial nominations are going to be by both parties from now on). So yeah, it *is* gross incompetence, but it also just speaks to the fact that Obama clearly doesn't want to burn political capital (and public focus) early on with regard to COA nominees, I think. At least, not for the moment. And in fairness to Obama, Clinton didn't get *any* COA nominees confirmed until after this point in his first year.

I have heard rumors, though, that Obama's people are getting ready to lob up a bunch more COA nominees. My guess is we'll see some nominations immediately after the Sotomayor vote -- maybe during the August recess, maybe sooner. I wonder if they're waiting to see a few COA nominees confirmed first. And I still can't figure out why they're moving so slowly on (slam-dunk) district-court nominations for that matter.

Finally, JamesSmith130, I agree with you about the Alito seat (and the Roberts seat as well). It's pretty damning that those weren't filled by Bush. He had plenty of time, and even still some political capital before the 2006 elections. That's the fault of both Bush and the Senate GOP leadership in 2006 not to have made it a priority to get both those seats filled, particularly since it was obvious even by early 2006 that the GOP's control of the Senate was clearly at risk (you all will remember that the talk at that time was that the Dems needed to almost run the table to take over the Senate, but it wasn't *that* far-fetched of a proposition, and obviously it wound up coming true).

http://legaltimes.typepad.com/blt/2009/07/senate-needs-to-move-on-legal-...

"The chairman of the Senate Judiciary Committee accused Republicans today of stalling the confirmation of nominees for top legal jobs.

Sen. Patrick Leahy (D-Vt.), speaking at the start of a committee meeting, expressed frustration that the Senate has not confirmed any nominees to the federal judiciary this year. In all, he said, there are 17 nominations that the Judiciary Committee has sent to the full Senate and that are still awaiting confirmation.

'The Senate has to do better,' Leahy said. 'There's actually no excuse for not having moved yet.'"

"The nomination of Judge Sonia Sotomayor to the Supreme Court has contributed to the slowdown among legal nominations. She is likely to be confirmed next week, and the Office of Senate Majority Leader Harry Reid (D-Nev.) has said he hopes to break the backlog of other nominees before the Senate recess set to begin Aug. 7.

President Barack Obama is still doing better with judicial nominations than at least one of his recent predecessors. President Bill Clinton waited until August of his first year in office to announce nominees for the circuit courts."

I do think that Obama will soon name a new slate of judicial nominees, but not in August. For several reasons, he will keep the names names secret until September when the Senate reconvenes after its annual August recess. First, he technically can't make any nominations while the Senate is out of session in August. Second, I doubt if any of the nominees are real liberals that he will want their names hanging out there a full month for conservative investigation without any possible Senate action.

In general, I am amazed that Obama has not named anybody to COA seats controlled by two Democrat senators. There are three 9th Circuit seats, four (five after Sotomayor's confirmation) 2nd Circuit seats and one 1st Circuit seat he could have easily had filled by now. I can't believe that the likes of Feinstein, Boxer and Schumer are having a problem finding just the right liberal for some of those positions. There definitely seems to be a breakdown in the judicial selection process with shared blame for both the White House and the Justice Department. One wonders what is going on.

Obama's greatest problem will be filling seats controlled by Republicans (the 10th Circuit's single opening and the three NC and SC seats) or of strategic importance to the Republicans (the two D.C. Circuit seats). I can understand a delay in those nominations, but the rest?

http://thehill.com/leading-the-news/reid-sotomayor-to-get-fewer-votes-th...

"Senate Majority Leader Harry Reid (D-Nev.) blasted Senate Republicans for being out of step with the country and conceded Wednesday that Supreme Court nominee Sonia Sotomayor would win fewer votes than Chief Justice John Roberts.

'It appears today we’re going to get a handful of Republicans,' Reid told reporters during a press conference with the leaders of civil rights groups. “I hope that my prediction is wrong. I hope we get half the Republicans. It would be great to get 20 Republicans.'"

"Reid noted that Roberts won the support of about half of the Democratic Conference in 2005.

Sen. Charles Schumer (D-N.Y.), the vice chairman of the Senate Democratic Conference, predicted earlier this month that 'there's a very good chance she's going to get as many, if not more, votes than Judge Roberts got, which was 78.'

But those high hopes have come back down to Earth. Sotomayor, who would become the first Hispanic member of the high court, failed even to win the support of the two Republican senators from Texas, Sens. John Cornyn and Kay Bailey Hutchison."

"Senate insiders think the opposition of the National Rifle Association (NRA) may have swayed some Republicans against Sotomayor. The gun rights group sent a letter to Senate leaders last week announcing their opposition and pledging to factor her confirmation vote in future candidate evaluations.

Reid, despite facing a difficult reelection in a state where gun rights are popular, said the NRA’s action 'doesn’t persuade me.'

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who appeared alongside Reid, said the NRA’s opposition was 'totally out of line.'"

http://www.google.com/hostednews/ap/article/ALeqM5huyApqmCqq9U5Hw9jP5IYR...

"Senate Democratic leaders implored Republicans Wednesday to join them in voting to confirm Supreme Court nominee Sonia Sotomayor next week, warning the GOP would face painful political consequences for opposing the judge in line to become the first Hispanic justice.

"I just think that their voting against this good woman is going to treat them about the same way that they got treated as a result of their votes on immigration," Sen. Harry Reid, D-Nev., the majority leader, said of Republicans. He was referring to the electoral losses — including among Hispanic voters, a fast-growing segment of the electorate — the GOP suffered after its spirited opposition to measures that would have given some illegal immigrants a chance to gain legal status."

If Reid and Leahy think that opposing Sotomayor will cost the GOP votes, why are they "imploring" Republican Senators to vote for her?

http://ninthjustice.nationaljournal.com/2009/07/tracking-the-vote-senato...

The 23 "against" are:

Burr, DeMint, Hutchinson, Shelby, Vitter, Coburn, Grassley, Risch, Crapo, Johanns, Sessions, Cornyn, Hatch, Cochran, Kyl, Wicker, Thune, McConnell, Bennett, Bunning, Bennett, Inhofe, Roberts.

The 5 "for" are: Lugar, Martinez, Collins, Snowe and Graham.

The 12 "missing in action" are:

McCain, Murkowski, Voinovich, Alexander, Barrasso, Bond, Chambliss, Isakson, Corker, Ensign, Enzi, and Gregg.

The Democrats apparently want the public to believe that Sotomayor should get as many votes as Roberts because she has similar credentials. I believe this is a false comparison. Rather, Sotomayor's credentials are almost identical to Alito, not Roberts. Both went to Princeton and Yale, were prosecutors and longtime court of appeals judges before their nominations. The Republicans should stress this Alito/Sotomayor comparison, and then point out that only FOUR Democrats voted for Alito. Why should Sotomayor get any more than FIVE Republican votes now? Was Alito at the time of his confirmation really any more conservative than Sotomayor is liberal now?

Alito only got 4 yeas out of 45 Ds - under 9%. Sotomayor will get about double that percentage of Rs.

You make a great point about the Dems' disingenuousness. I guess their view is that they "win" either way, in their minds -- if GOP senators vote *against* Sotomayor, Dems hope and believe that Hispanic voters will turn more against Republican senators. And, they think that if senators vote *for* Sotomayor, that'll help make Sotomayor (and by extension, Obama) appear more bipartisan. I agree, though, that it makes no sense to encourage one's opponents to support something if you think it will spell doom for them at the polls.

I bet we could find some great quotes in the opposite direction in 2005-2006, with Republican senators warning their counterparts that they'd face harsh consequences if they voted against Alito and Roberts.

And I hadn't really thought about this until today, but in fact, the truth is, not only did voters *not* punish Democrats for voting against Roberts and Alito, one could make the argument that voters actually *rewarded* Democrats for voting against those two. That data point in and of itself is the most powerful argument around for why votes against Sotomayor by Republican senators shouldn't hurt their standing with Hispanic voters.

Of course -- and I never really thought about this until today either -- one can also argue that the Democrats' blowout Senate victories in 2006 and 2008 pretty much pour cold water on the theory that voting against a president's judicial nominees can do lasting damage. Sure, the GOP victories in 2002 and 2004 were generally attributed *in part* to Democrats blocking Bush's COA nominees. But I'm not sure how credible that explanation really is in retrospect; you'd think that Dems' votes against Roberts and especially Alito (plus their general blocking of COA nominees in 2006-2008) would have cost them dearly at the polls in '06 and '08, and that just didn't end up happening.

An article I read the other day that suggested that voters say they truly favor the model of judicial restraint and oppose judicial activism (for admittedly overly simplistic political purposes I'll just call this "Republican judging"), and do not support the model of judicial activism and empathy (I'll call this the "Democratic judging"). And yet, the article also wrote that polling indicates that voters tend to prefer the *outcomes* from Democratic judging. It's hard to know what to make of this. But obviously bigger factors (Katrina, Abramoff/scandals, Bush fatigue, the economy) came into play in 2006 and 2008, including putting a president in office who cares more about judges' empathy than anything else. How to square that?

In the end, I think it's hard for us on this site to see the (fairly humbling) truth, which is that voters don't really make that much of their voting decisions on judges. It's a shame, because it's consistently one of a president's biggest legacies. It was one of Carter's biggest legacies (he appointed a huge number of COA judges -- most of whom were young), it was and clearly continues to be one of Reagan's biggest legacies, it's one of Bush 41's biggest legacies, it's one of Clinton's biggest legacies, and it will surely be one of Bush 43's biggest legacies. And, it'll likely be one of Obama's biggest legacies. And voters...just don't care that much. That's in part why I think this vote-counting that everyone's doing on Sotomayor is a little pointless. It will matter far more in the future when we have a president in office with the opposite party controlling the Senate -- I think the day will come when we will again see a president's SCOTUS nominee actually voted down for ideological reasons. Can anyone doubt that the Dems would have voted down Alito had he been nominated by a President McCain in 2009 to a Senate with 60 Dems? Similarly, can anyone doubt that the GOP would vote down Sotomayor if they had 60 votes in the Senate?

I disagree with this:
"And I hadn't really thought about this until today, but in fact, the truth is, not only did voters *not* punish Democrats for voting against Roberts and Alito, one could make the argument that voters actually *rewarded* Democrats for voting against those two. That data point in and of itself is the most powerful argument around for why votes against Sotomayor by Republican senators shouldn't hurt their standing with Hispanic voters."

Polls in 2006 showed that the two things that the public supported Bush on were terrorism and his nominations of Roberts/Alito. The public voted for Democrats despite their opposition to the justices and not because of. The main reason for the support was the qualification of Roberts/Alito.

This is why I said upthread that the biggest blunder that Harry Reid and Chuck Schumer made in 2005/2006 was not to support Harriet Miers outright and see that she would be confirmed. Miers would have been unpopular among moderates because of the sense that she was unpopular and among conservatives for the same reason as well as that it was not clear where she stood. It would have been one more strike against Bush and the GOP in the public eyes, even if Dems voted for Miers and most Republicans voted against.

A few thoughts on upcoming Obama COA nominees:

--You raise an excellent point about the administration now possibly choosing to hold off on new nominees until after the August recess because of not wanting nominees' names -- particularly controversial ones -- to just hang out there in the air, inviting scrutiny, during the recess. At the same time, I have to say, I'm amazed at how utterly uncontroversial Obama's five COA nominees have been so far. Even Hamilton, who's taken the most fire, just hasn't been that controversial or shocking of a nominee (he actually was no surprise and could easily have been predicted to be an eventual COA nominee, given his pre-existing political ties, and also how young he was when Clinton picked him to the district court). Is Hamilton left-leaning and liberal? Sure. But controversial? Not so much; I think most conservatives haven't even heard of him (i.e., it's not like Rush has ever mentioned Hamilton). And one can tell how uncontroversial Obama's other picks have been by how little Ed Whelan has attacked them. Ed's done a short write-up on Lynch and he's done one on Davis too, I believe, but you can tell from what he's written that his heart really hasn't been in it. And Whelan hasn't even bothered -- yet, at least -- to write anything about Martin and Greenaway. (Contrast that with the reams of bytes that he wrote about Harold Koh, who wasn't even up for a lifetime appointment!)

--I also am amazed that Obama hasn't nominated more people for COA seats so far -- particularly as you note, to seats where there would be no blue slip because they're seats that "belong" to states with two Democratic senators. I think this further reaffirms my earlier contention that the administration just hasn't yet made judges a high priority -- especially when one looks also at how few (almost always slam-dunk) district-court nominations have been made as well so far. And note who Obama *has* chosen so far for COAs -- solely existing district-court judges whose lives, at least up to the point of their being nominated by Clinton, were fully "vetted" by Clinton's staff. (Note that Obama still has not yet nominated a single non-Article III judge.) That means that the five COA nominees he has submitted so far are nominees who required less up-front vetting in general than, say, unknown lawyers who have never before been confirmed by the Senate. I agree with you, BoBo -- there's no doubt that there's a huge number of liberal candidates for all of the COA vacancies (particularly the 2nd and the 9th), and I'd bet that a large number of lawyers who were big-dollar Obama contributors have sent word to Boxer, Feinstein, Schumer, et al that they'd like to be considered. But, I think Obama and his people have for whatever reason just decided to put controversial (and particularly, never-before-vetted) judicial nominees on the back burner, at least for the first half-year-plus of his administration.

--I actually think Obama will have less trouble filling the 10th Circuit opening than one might expect. His people probably will work with Hatch to find someone pleasing to both sides (Clinton found someone from Utah whom Hatch was willing to support in Judge Michael R. Murphy, back in '95). Obama will have a tougher time with the SC seats on the 4th, particularly because Sen. DeMint 1) won't be happy with the possible transfer of one of the SC seats to NC; and 2) would be perfectly content, I'd guess, to leave those SC seats vacant until there's a Republican president. As for the DC Circuit, I think any president is going to have a tough time filling seats on the DC Circuit from here on out. I also think, however, that Obama will have no trouble getting his eventual DC Circuit picks confirmed (even if it takes cloture votes), since there's no blue slip on those. In fact, right now, the 4th Circuit's NC and SC seats are the only ones where I think the blue slip would even be in play. It'll be interesting to see if Reid/Leahy at some point suggest doing away with the blue slip. My guess is that they won't -- for the time being, at least, it's not really handicapping them.

I was under the impression that you only needed one senator to return a blue slip. If you need two, I feel much more relieved about the judges in the Carolinas. Demint and Burr will block any bad choices in those states.

JamesSmith130

You raise a good point, and perhaps I should have phrased my comment above a little differently. I remember the polls suggesting that voters agreed with Bush's view on judges, and I recall judges being credited for Republican gains in '02 and '04. The bottom line for me, though -- and this is what I should have phrased differently -- is that in the end, opposing Roberts and Alito clearly did not *harm* Dems at the ballot box in '06 and '08. Even accepting the assertion that the public voted for Democrats in '06 and '08 *despite* their opposition to Roberts and Alito, it's clear that as a practical matter, Democratic senators' opposition to the two jurists just didn't end up moving the needle that much with voters. (I can't think of a single close Senate race where it might have been a factor. Harold Ford-Bob Corker? Hard to see.)

Or to put it another way, Dems never paid any real price for opposing Roberts and Alito. In the same manner, I would be highly surprised if Republicans ever pay a price at the ballot box for opposing Sotomayor. So while judges may affect voters' stated support (to pollsters) of one side or another, it's not that obvious to me how that translates into things electorally. Maybe things will change in the coming years. At the moment, though, I doubt it.

I very much agree with you that Dems in the Senate made a huge mistake in not supporting Harriet Miers, for all the reasons you mentioned, plus the fact that she is a lot older than Alito as well (hard to believe that she's almost 64). I don't know what Dems were thinking. No one can know where Miers would have wound up from an ideological standpoint (I personally think she would have ended up voting largely the same as Alito), but the Dems had the opportunity to get someone with the *potential* to be less conservative than the guy they ended up with. Plus, they could have helped usher in a justice who would be viewed as another knock on Bush and the GOP, and the Dems even could have couched their language supporting Harriet in terms that were politically favorable to themselves and dripped with sanctimony (imagine Dem senators saying things like, "well, we don't love this nominee, but gosh golly, we really believe in deferring to the president's choice where possible," all the while privately being thrilled that such a lousy and unpopular choice was being confirmed). The Miers saga underscores why true Republican opposition to Sotomayor is a little suspect; as I've noted earlier, if Sonia somehow (improbably) ends up going down, which she obviously won't, there's a high likelihood that Obama's next nominee would be *more* liberal than she.

Basically, I think voters will punish Senators for voting for certain Supreme Court justices IF there are not competing economic or military issues at stake. I think the Dems won so many seats in 2006 because of war fatigue and in 2008 because of the economy. I bet most people do think that the Dems were being unreasonable in trying to block Roberts and Alito. I have read that both Roberts and Alito had better polling percentages after their hearings than Sotomayor does now. The main reason the public didn't vote against the obstructing Dems is just that there were more important issues in voters' minds.

As far as the next Supreme Court nominee goes, I think it really depends if the the vacancy occurs before or after the 2010 election. Before, I think the nominee will be more moderate. Afterwards, especially if the Republicans lose ground, the nominee will be more liberal. Obama and the Dems will not want a Supreme Court battle just prior to an election.

In all the talk about Sotomayor, I overlooked the fact that Beverly Martin had her hearing for the 11th Circuit on Wednesday. Looks like despite one controversial ruling, both Hatch and Sessions said they would vote for her:

http://www.ajc.com/news/georgia-politics-elections/senators-poised-to-na...

"In addition to getting approval from the president and other top Democrats, U.S. District Judge Beverly Martin received praise from key Republicans on the Senate Judiciary Committee, as well as from both of Georgia’s Republican senators. “You just don’t hear any negative comments about the way she handles herself in the courtroom and her ability to make the right decisions,” Republican U.S. Sen. Saxby Chambliss of Georgia said in an interview after the committee meeting Wednesday. Chambliss said he didn’t see any major hurdles to the appointment of Martin, a longtime friend."

"The Senate Judiciary Committee could vote on whether to approve Martin’s nomination within the next several days. If so, the full Senate could expect to consider her nomination by Aug. 7, when it begins its month-long recess."

It's possible that Hamilton, Lynch, Davis and Martin may get confirmed next week - some probably by voice vote. That would leave only Greenaway to look at after the August recess.

http://www.google.com/hostednews/ap/article/ALeqM5izhDTydzAXUz-WujN6urQV...

"The Senate's No. 3 Republican announced Thursday he'd break with the rest of his party's leaders to support Supreme Court nominee Sonia Sotomayor, who's in line to become the first Hispanic justice.

Tennessee Sen. Lamar Alexander said he was voting for President Barack Obama's nominee despite his differences with her, particularly on gun rights.

"Even though Judge Sotomayor's political and judicial philosophy may be different than mine, especially regarding Second Amendments rights, I will vote to confirm her because she is well qualified by experience, temperament, character and intellect to serve," Alexander said in a speech on the Senate floor.

Alexander, a conservative, is only the sixth Republican to publicly line up with majority Democrats to back Sotomayor, a native of Bronx, N.Y. and a federal appellate court judge. She's virtually guaranteed to be confirmed in a vote next week, and is expected to join the Supreme Court in time for an earlier-than-usual meeting in September to hear a campaign finance case."

Alexander was on my list of the seven senators whom I thought may vote yes. (Two others of that list have already said that they will vote no, Hutchison and Grassley.)

http://www.macon.com/149/story/793774.html

"Sen. Saxby Chambliss, R-Ga., announced today that he will oppose the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court."

http://www.knoxnews.com/news/2009/jul/30/senatorial-split-alexander-vote...

"U.S. Sen. Bob Corker, R-Chattanooga, said Wednesday he would vote against Sotomayor."

McCain, Murkowski, Voinovich, Barrasso, Bond, Isakson, Ensign, Enzi, and Gregg.

http://www.washingtonpost.com/wp-dyn/content/article/2009/07/29/AR200907...

"Most senators in both parties have volunteered for or been drafted into the opposing armies. When a Republican president's nominee comes before the Judiciary Committee, Democrats pepper him with hostile questions -- and vice versa.

In response, the nominees have become less and less informative, not daring to repeat Bork's mistake of actually arguing for his view of fundamental legal issues. Instead, they have camouflaged themselves in cliches. For John Roberts, en route to the chief justice's chair, it was the claim that he would be as neutral as an umpire calling balls and strikes. For Sotomayor, it was the contention that a judge simply "applies the law." With endless rehearsals of the nominees by the White House and Justice Department aides, the confirmation hearings have become as scripted as most presidential campaign debates.

At least it has seemed so to me. But this week, when I spoke with two of the more thoughtful members of the Judiciary Committee, Chairman Patrick J. Leahy (D-Vt.) and Sen. Lindsey O. Graham (R-S.C.), they gave me more reason for optimism."

"Both men said they have learned to exploit their private meetings with nominees in their offices, before formal hearings begin."

"Both these senators decry the growing role of interest groups that lobby on judicial confirmations. Both have defied those pressures, Leahy in voting for Roberts and Graham in being the lone Republican to support Sotomayor in this week's vote.

"I pointed out that Roberts was not someone I would have recommended to Bill Clinton or Barack Obama," Leahy said, "but I did not want to see the chief justice of the United States confirmed on a party-line vote."

Graham took the same stance on Sotomayor, saying he expected to disagree with many of her rulings, but gave great deference to Obama's choice because "elections make a difference" and she is "clearly qualified." He said he hoped it would serve as an example to Democrats the next time a Republican president makes a nomination.

If their examples spread, we might avert the ugly partisanship of recent confirmation fights."

PROBLEM WITH THIS INTERVIEW: IT AGAIN USES THE FALSE "SOTOMAYOR THE SAME AS ROBERTS" COMPARISON. LET'S HEAR MORE ABOUT THE "SOTOMAYOUR THE SAME AS ALITO" COMPARISON. DID LEAHY OR ANY OF THE SJC DEMS VOTE FOR ALITO?

Watch McCain, Murkowski, Voinovich, and Bond for potential yea votes. I'd actually be very surprised if Voinovich is anything but a yea vote.

Gregg might have voted yea if he was running for reelection. He isn't so I expect a no vote. I'd also put Isakson as a dark horse to vote yea, but my expectation is that he votes no.

http://www.macon.com/news/breaking_news/story/793774.html

"Sen. Saxby Chambliss, R-Ga., and Sen. Johnny Isakson, R-Ga., announced today that they will oppose the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court."

I can't imagine they'd vote differently.

It truly is remarkable that no GOP Senator is competent enough make the simple "Soto = Alito, not Roberts" statement, and even more incredibly, that none apparently have a staff member capable of suggesting it to them. Makes the "Iraq = Yugoslavia, not Vietnam" argument (not that it was ever needed) look like partial differential equations.

Seriously, it is disheartening that the guys in charge of trillion dollar budgets and thousand head nuclear arsenals seem unable to do anything except race to the lowest common denominator, all the while groveling for more money and power and insisting upon their own magnificent irreplacability.

And of course, the few members of the MSM cogent enought to make the connection btwn Sonia & Sam would never DREAM of doing so publicly, out of naked personal political beliefs. Why the hell haven't Rush, Hannity, Anniebelle, Beck et al, been pounding this for weeks now? We certainly deserve to be in the current situation we are. These are our leaders & debate shapers?

Cold comfort that the rest of the world's in even worse shape, but it's about all we have left at this point.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

http://hotlineoncall.nationaljournal.com/archives/2009/07/gopers_most_li...

"Here are On Call's picks for the GOP senators most likely to flip:

1. Sen. Judd Gregg (R-NH): Gregg won't seek re-election in '10, and he has shown significant deference to Obama's appointees (he was, after all, Obama's pick to head the Commerce Dept., for a short while).

2. Sen. John McCain (R-AZ): Nearly 30% of AZ's population is Hispanic, and McCain's BFF, Sen. Lindsey Graham (R-SC), was the only Senate Judiciary Republican to break with this party. But McCain is also feeling some heat on the right; Minutemen co-founder Chris Simcox is planning a primary challenge.

3. Sen. Kit Bond (R-MO): A spokesperson for the retiring Bond said that he is inclined to support Sotomayor. But Bond helped lead the charge against State Dept. legal adviser Harold Koh over concerns that Koh might supplant American law with transnational law based on his past writings. Sotomayor's beliefs about how or if judges should consider foreign or international law was a major GOP theme during her confirmation hearings.

4. Sen. George Voinovich (R-OH): Guns won't be an issue for the retiring Voinovich, who helped Dems shoot down the Thune amendment, which would have lifted some restrictions on bringing concealed weapons over state lines. Voinovich doesn't have many GOP friends right now, either, after he said 7/27 that the party was "being taken over by Southerners." But Voinovich also voted against Solicitor Gen. Elena Kagan, who some think might be Obama's next SCOTUS choice, back in March.

5. Sen. John Ensign (R-NV): A longshot, but the beleaguered Ensign has a little more than three years to rehabilitate his reputation before his re-election bid. Where to start: his conservative base, or the 25%-and-growing Hispanic population of his home state?"

There are some similarities between Sotomayor and Alito, namely, wise Latina and CAP. In both situations, Senators seemed to be delving into ridiculous lines of questioning.

The minor difference is that we had only 'wise latina', while they had both CAP and Vanguard.

I believe that there are some differences in their case history, though. The only cases which I recall really being discussed for Sotomayor were Ricci and to a lesser degree, Riverkeeper v EPA. For Alito, there was the stripsearch case, Rybar, Casey, and a couple others I might be missing.

I'm not saying its logical, or fair, or that liberals are even remotely honest. But when you have more darts, its easier to hit the board.

http://www.rollcall.com/news/37415-1.html

"Senate Majority Leader Harry Reid (D-Nev.) announced Thursday afternoon that he hoped to begin floor debate on the nomination of Supreme Court nominee Sonia Sotomayor on Tuesday as the Senate wraps up work on a series of largely noncontroversial spending and policy bills before the August recess."

http://thehill.com/leading-the-news/sotomayor-vote-date-uncertain-2009-0...

"There is little doubt that Supreme Court nominee Sonia Sotomayor will be confirmed next week. But it’s unclear when it will happen.

Senate Republicans have proposed the idea of a four-day debate on the nominee, with most of their 40 members planning to speak on Sotomayor’s fitness for the court. But Democrats say no more than two days should be necessary — and that other Senate business will be on the chamber’s to-do list as well.

Hanging over the negotiations between Minority Leader Mitch McConnell (R-Ky.) and Majority Leader Harry Reid (D-Nev.) is the Senate’s precious deadline of adjourning for its monthlong August recess on or before Friday, Aug. 7. A prolonged schedule on Sotomayor could push that into the weekend, particularly since appropriations bills will also be vying for floor time.

“I don’t know how Reid does it all and still has time for Sotomayor,” said GOP Minority Whip Jon Kyl of Arizona."

Perry gets to appoint the replacement in the senate for the person who is opposing him for governor?

It gets curiouser and curiouser. Will Perry appt. himself and back out of the race? I doubt it, for at least 2 reasons: he wants to defeat KBH; and self appts. rarely last long.

Could we pretty please have yet another Sotomayor thread, since we're almost at 60 posts? Many thanks.

Eric Haren of Law.com writes a pretty interesting piece on the subject, particularly if Obama serves two terms. Not a lot of what's in here is new (to ConfirmThem readers, at least), but it is striking:

http://www.law.com/jsp/article.jsp?id=1202432541517

"In Obama's first term, 50 appellate judges may assume senior status. Thirty-five of those were appointed by Republican presidents. Beginning with the 61 current Democratic appointees and adding the 18 current vacancies and the 35 potential vacancies produced by Republican-appointed judges assuming senior status, Democratic appointees may occupy 114 of the 167 appellate judgeships (not counting the specialized U.S. Court of Appeals for the Federal Circuit) after Obama's first term. That number could increase to 131 during a potential second Obama term."

against Sotomayor?

Ben Nelson and Mark Begich are apparently very undecided. Looks like Max Baucus succumbed to pressure.

Remember that Lincoln Chafee voted against Alito. Do Nelson and Begich have the guts to buck their party?