An Historic Vote, A Broken Confirmation Process

As you’ve probably heard by now, Supreme Court nominee Sonia Sotomayor moved one step closer to Senate confirmation this morning when the Senate Judiciary Committee voted 13-6 to recommend to the full Senate that she be confirmed. Pause here for a second: all Americans should be proud to see such an unquestionably qualified nominee move towards confirmation as the first Latina justice on the Supreme Court.

But six of the seven Republicans on the Senate Judiciary Committee were committed to raining on this parade; only one Republican Senator – Lindsey Graham of South Carolina – voted for confirmation. Perhaps most striking about this opposition was the number of these Senators, most notably ranking member Sen. Jeff Sessions (R-AL), who cited the exact same concerns expressed before Judge Sotomayor’s televised confirmation hearings as the reason for voting against her – raising questions about what, if any, role the hearings played in their voting decisions.

In fact, Senators of both parties mixed expressions of admiration for Judge Sotomayor with expressions of disappointment with the confirmation process. In his speech explaining his decision to vote in favor of Judge Sotomayor’s confirmation, Sen. Graham bemoaned the passing of the “Scalia/Ginsburg standard,” whereby nominees who are unquestionably qualified by objective criteria can expect to be confirmed with a lopsided bipartisan vote, even if they fall on one side or another of the ideological spectrum.

Similarly, a chorus of Democratic Senators voiced their concerns, in the context of a nominee they supported and liked, that the confirmation process needed to be reformed to allow a more free flowing debate about major legal issues of the day. Sen. Herb Kohl (D-WI), for example, proposed creating a bipartisan committee of Senators, public interest groups, and even the media to help develop substantive questions that a Supreme Court nominee could reasonably be expected to answer. Such a proposal would be a good idea, especially if leadership to do this exists among Democrats in the Senate while a fellow Democrat is still in the Oval Office making nominations.

Along similar lines, Sens. Feingold (D-WI) and Specter (D-PA) also expressed concern that the confirmation process had become, as Sen. Feingold put it, “theater,” but that it nevertheless remained an important point of access for Americans into the discussion over the role of judges, the law, and the Constitution.

This conversation was punctuated at the end of today’s session by newly-appointed Sen. Al Franken (D-MN), who best made the point that we’re at a critical crossroads for the future of the Supreme Court, with the current conservative majority threatening to limit or strike down key portions of such critical federal statutes as the Voting Rights Act and the Bipartisan Campaign Reform Act.

Sen. Franken’s comments may have revealed the opinion of many Senators on the Judiciary Committee, by highlighting not only how increasingly important it is that Senators feel they can ask and get answers to substantive, meaningful questions from future nominees, but also that the hearings remain an open, honest discussion of the direction and significance of the Court and its members’ judicial philosophies. In addition to the historic nature of today’s vote to recommend Judge Sotomayor for confirmation to the Supreme Court, therefore, we can hope that today will be a turning point in the history of the Supreme Court confirmation process itself.