- The Washington Times - Tuesday, May 12, 2009

Republicans’ new top man on the SenateJudiciary Committee said even without a new Supreme Court nominee having been named, Republicans will begin looking into the shortlist of names President Obama reportedly is considering and even could warn the White House confidentially if they think a nominee is unacceptable.

It’s a courtesy that Sen. Jeff Sessions, Alabama Republican, who took over as the ranking Republican on the committee last week, might have appreciated himself in 1986.

That’s when, as a 39-year-old U.S. attorney whom President Reagan had nominated to a federal district court in Alabama, he was one of the first to be “Borked” — a later term referring to Judge Robert Bork, whose 1987 nomination was derailed by an assault from liberal interest groups and lawmakers such as Sen. Edward M. Kennedy. Mr. Sessions had heard it all before — Mr. Kennedy's “Robert Bork’s America” floor speech in 1987 sounded like an expanded version of the statement the senator had made in the Judiciary Committee a year earlier, in which he had said Mr. Sessions was “a throwback to a shameful era.”

“The same tactics were used on Bork, on Clarence Thomas, on William Rehnquist, but I was the first,” Mr. Sessions told The Washington Times in an extensive interview last week that recounted the accusations of racism that were leveled against him and the lessons he learned that have led him to vow Republicans won’t engage in those tactics under his watch.

“The charges were so hurtful, and they would stick, and then the refutations never got as much play. So I made up my mind that I was not going to let that bother me, but one thing I’ve said over the years, to the extent I’m able, I’m going to make sure the next poor slob that’s down at that table gets a decent shake,” Mr. Sessions said.

That next person at the witness table in the Judiciary Committee hearing room could be the replacement Mr. Obama names for retiring Supreme Court Justice David Souter. That nomination will be the first big challenge for Mr. Sessions, who finds himself having to organize committee Republicans and their staff in the middle of a session of Congress. He took over last week after Sen. Arlen Specter, who had been the top Republican on the committee, switched parties.

Mr. Sessions said he won’t prejudge any potential nominee but said his staff will begin scouting the names being floated so they aren’t caught off-guard when Mr. Obama announces his pick.

“We need to begin to do some of that now. And it’s possible that we could warn the White House at some point confidentially about this or that nominee — before they make a nomination,” he said.

However, with Democrats bordering on the 60 votes needed to stop filibusters, Mr. Sessions said he knows Republicans don’t have many tools to stop a nominee — and he said he has “opposed, [and] I have grave doubts about, the use of filibusters.”

Still, he says that despite his own experience, questions about a nominee’s record, past writings, conflicts of interest and judicial philosophy are all fair game — and he said with Democrats likely reflexively to back Mr. Obama’s nominee, Republicans will have to ask those questions. However, he said if a nominee is stopped this time, it will be because Republicans raise objections with which Democrats are forced to concur.

Mr. Sessions said he’s organizing his own kitchen cabinet to figure out how to approach nominees — he mentioned former Attorney General William Barr and former Assistant Attorney General Viet D. Dinh as well as former Senate chiefs of staff — and said he hopes to put forward some principles to which both Republicans and Democrats can agree about “what we should look for in a nominee.”

“What I believe about the process, and the people I’m talking to, I think most Republicans would agree and maybe most Democrats would agree with what the principles we ought to apply in the process, so we just need to slow down a bit,” he said.

Mr. Sessions subscribes to the umpire analogy Chief Justice John G. Roberts Jr. used during his confirmation hearing, in which he said judges, like umpires, call balls and strikes according to the law. Mr. Sessions said that should take precedence over other considerations, such as Mr. Obama’s desire for a judge who shows “empathy,” among other characteristics.

“It’s not empathy, it’s who has a meritorious claim. And if we give that up, then we’ve given up the magnificence of the American legal system,” he said. “This is what it comes down to. You don’t want the judge saying, ‘Well I’ve got more empathy for the Yankees than the Red Sox [so] that’s a ball.’”

Mr. Obama has promised to consult with senators and already has made calls to some of them, including former chairmen Sen. Orrin G. Hatch, Utah Republican, and Sen. Arlen Specter, the Republican-turned-Democrat from Pennsylvania. Mr. Obama also called Mr. Sessions after Republicans selected him to lead the committee last week, but Mr. Sessions said that was not consultation.

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