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Graham's Plan To Reset Confirmation Process

Graham's Plan To Reset Confirmation Process

By Kyle Trygstad - July 15, 2009

South Carolina Sen. Lindsey Graham (R) has bigger plans for the Supreme Court confirmation hearings than simply scrutinizing Sonia Sotomayor's judicial record and credentials. Graham wants to show the Democrats on the Senate Judiciary Committee that disagreeing with a nominee's ideology is not reason enough to vote against them.

Since Sotomayor began visiting with senators in early June, Graham has been outspoken in his criticism of her judicial temperament and philosophy, as well as speeches she gave in which she seemed to indicate her sex and ethnicity helped her reach better judicial decisions than a white male could.

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After meeting with her in his office June 3, Graham told a pack of reporters waiting outside that if he employed the standard that then-Senator Obama used when deciding to vote against both John Roberts and Samuel Alito -- judicial record, ideology and philosophy -- Sotomayor would have difficulty winning his vote.

But that is not what Graham and many others believe the standard should be, and Graham has since indicated he's leaning toward supporting her.

"There was a different day when we didn't do it that way," Graham said outside his office. "Justice Ginsburg, 96-3 ... Justice Scalia, pretty conservative, 98-0. What happened to those days? That's not the Senate I've been part of. I would like to go back to that, but I live in a world where it may be very difficult to do that."

The Senate Graham's been part of since 2003 is one in which a president's judicial nominee could be filibustered (with 60 votes needed to confirm instead of 50) based on "out of the mainstream" personal views -- as Miguel Estrada was for two years before withdrawing his name in September 2003. Sen. Charles Schumer (D-N.Y.) defended the filibuster at the time by arguing that Republicans would not even bring up for a vote 54 of President Clinton's nominees.

Graham mentioned Estrada -- who was nominated to the D.C. Circuit Court of Appeals -- at the start of his opening statement Monday. He said Obama's victory in November "ought to matter" when it comes to voting on judicial nominees; that sharing Sotomayor's "liberal" views is not a prerequisite for supporting her confirmation.

Speaking with RealClearPolitics Tuesday, Graham said "it's ok to be an advocate of a cause that I disagree with," unlike how Alito and Roberts were opposed due to some of their associations.

"If she can advocate liberal causes as a member of the Puerto Rican Legal Defense Fund," he said, "then when a conservative gets in office and they pick an activist lawyer who's been advocating conservative causes, I expect it to go both ways."

In his allotted 30 minutes of time Tuesday afternoon, Graham served up the most intense line of questioning of the day. He quoted criticism of her judicial temperament; said that a white, male politician who uttered something similar to her ‘wise Latina' line would make national news -- "as it should"; asked if she believed the United States is at war; asked whether she believed Roe v. Wade had changed American society; and asked about her 12-year affiliation with the Puerto Rican Legal Defense Fund, which he said argued during her time there that "to deny a low income woman a taxpayer-funded abortion is a form of slavery."

Despite the tough and sometimes tense questioning, Graham continues to soften when it comes to how he'll vote.

"I don't want to be the Republican who can never vote for a Democratic nominee because the Democrats won the election," Graham told FOX News on Monday. "I do want to vote for somebody I trust and have faith in."

Graham critics may say he's simply being forward-minded -- knowing that Sotomayor will surely be confirmed, by voting for her he would build goodwill with Democrats for when a Republican wins the White House again. Or perhaps he's genuinely trying to reset Senate confirmation precedent.

Since he first met Sotomayor, Graham has maintained that a conservative would never nominate her to the Supreme Court -- but that the standard of supporting a judicial nominee once utilized by the president who nominated her is off-base.

"Well, if I apply that standard to her, I am deeply troubled," Graham told reporters just after meeting the nominee. "Because she doesn't share my judicial philosophy. She doesn't share my ideology. And her case decisions -- the judge I would appoint would probably come out differently. Does that mean she's not qualified to be on the Supreme Court?"

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Kyle Trygstad is a Washington correspondent for RealClearPolitics. Email him at: kyle@realclearpolitics.com. Follow him on Twitter @KyleTrygstad.

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