- The Washington Times - Tuesday, July 14, 2009

Opening Day of Supreme Court nominee Sonia Sotomayor’s Senate hearing on Monday quickly devolved into partisan wrangling and political score-settling as senators debated past judicial nominations, the partial-birth abortion ban and, of course, whether a high court justice is just an umpire calling balls and strikes.

As Judge Sotomayor sat silently at a small table draped in black, her injured right foot propped on a makeshift footstool, senator after senator expounded on judicial philosophy, ticking through judicial precedent and quoting ancient philosophers, but almost always winding up with a sports metaphor.

One senator, Democrat Sheldon Whitehouse of Rhode Island, achieved both, saying that appellate court judges like Judge Sotomayor “define the strike zone, within a matrix of constitutional principle, legislative intent and statutory construction.”

But citing Marbury v. Madison, which, as everyone knows, examined original jurisdiction over petitions for writs of mandamus, Mr. Whitehouse said the Supreme Court does not involve “balls and strikes.”

Not so, said Sen. Tom Coburn, who, quoting Aristotle, said Supreme Court justices do indeed call balls and strikes, as he lashed out at Mr. Whitehouse’s broadside on Chief Justice John G. Roberts Jr. and on high court abortion rulings.

Directly addressing Judge Sotomayor, the Oklahoma Republican said: “I thought this was your hearing, not Judge Roberts’ hearing,” adding for Mr. Whitehouse’s benefit that “the partial-birth abortion ban was a law passed by the United States Congress and was upheld by the Supreme Court.”

Sen. Lindsey Graham, South Carolina Republican, did not take a clear stand on the balls-and-strikes issue, but did bring up a bitter defeat for his party stretching all the way back to 2001.

“No Republican would have chosen you, judge, that’s just the way it is,” he said to Judge Sotomayor, who looked at times as if she were on the verge of tears. “We would have picked Miguel Estrada,” a Honduran-born judge who was President George W. Bush’s nominee for the Court of Appeals and became the first-ever appellate court hopeful blocked by a filibuster.

“He never had a chance to have this hearing,” Mr. Graham said before making two stark admissions — that the nominee would be approved unless she had a “complete meltdown” and that the hearing “is mostly about liberal and conservative politics more than it is about anything else.”

Sen. Orrin G. Hatch, Utah Republican, meanwhile, synthesized the debate into all of the above — while also drawing in President Obama. With much pre-hearing debate on the president’s desire to find a justice with “empathy,” Mr. Hatch noted that as a senator, the president opposed Janice Rogers Brown, a black woman nominated to the appeals court by Mr. Bush.

“He argued that the test of a qualified judicial nominee is whether she can set aside her personal views” and decide cases on their merits, Mr. Hatch said. Mr. Obama said then that while a nominee’s gender, race and life story “are important, they cannot distract from the focus on the kind of judge she will be,” he said.

“In fact, Sen. Obama never voted to confirm a Supreme Court justice,” Mr. Hatch said. “He even voted against the man who administered the oath of presidential office, Chief Justice John Roberts, another distinguished and well-qualified nominee.”

The day began breathlessly, as reporters crammed into Room 216 of the Hart Senate Office Building and political pundits bloviated on television. “So why is this so important? Why should you care?” Fox News’ Megyn Kelly said an hour before the hearing opened. “Everything comes down to politics here in Washington,” her co-host, Bret Baier, offered.

Over on MSNBC, Chris Matthews, prone to shivers up the leg, was electrified just by the process. “It is quite a day if you care about the American Constitution,” he said.

On CNN, the bearded Wolf Blitzer declared sternly: “We’re going to watch that room to see what time that gavel actually comes down.” With five pundits packed onto one table — laptops at the ready — Mr. Blitzer talked right through the nominee’s arrival and the opening gavel, saying shortly after the session began — “Wait a second, I think Chairman [Patrick J.] Leahy is starting to speak.”

Outside the Hart Senate Building hearing room, about a dozen pro-life activists lined up to greet the nominee, some holding blown-up pictures of aborted fetuses, others holding signs that said “Filibuster Sotomayor.” The hearing was twice interrupted by protesters yelling pro-life slogans.

While Mr. Graham’s prediction will almost definitely come true, the two sides laid out their lines of attack: Democrats urged all to look at the veteran judge’s lengthy judicial ruling record, while Republicans sought to look past those to her words off the bench, including her contention that as a “wise Latina” she would make better judgments than a white male.

The South Carolina Republican led the way.

“It just bothers me when someone wearing a robe takes the robe off and says that their experience makes them better than someone else. I think your experience can add a lot to the court, but I don’t think it makes you better than anyone else,” Mr. Graham said.

Mr. Leahy set out the Democratic strategy, while also delivering another partisan zinger.

“In truth, we do not have to speculate about what kind of a justice she will be because we have seen the kind of judge she has been. The record is significantly more complete than that available when we considered President Bush’s nominations of John Roberts and Samuel Alito just a few years ago,” the Vermont Democrat said.

After New York Democratic Sen. Charles E. Schumer moved himself nearly to tears with his introductory statement, Judge Sotomayor finally opened her mouth for the first time — five hours into her hearing. Her judicial philosophy, she said, was “simple — fidelity to the law.”

“The task of a judge is not to make the law — it is to apply the law.”

She took just three-quarters of her allotted 10 minutes for a statement, declaring that “in each case I have heard, I have applied the law to the facts at hand.”

But that won’t appease senators from either side of the aisle over the next few days. As Sen. Ted Kaufman, Delaware Democrat, said: “Fundamental fairness requires that in the courtroom, everyone comes to the plate with the same count of no balls and no strikes.”

And Monday was just the top of the first inning.

Joseph Curl can be reached at [email protected]

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