Monthly Archives: July 2009

It Wasn’t Always Like This: Sotomayor and Senate Polarization

The Senate Judiciary committee is scheduled to vote on the Sotomayor nomination today. Based on the statements made by Senators so far, the vote will almost surely break down along straight party lines, with all but one of the seven Republicans voting against confirmation, and all 12 Democrats voting in favor.  The Republican exception is likely to be Sen. Lindsey Graham from South Carolina, who has already said he will support Sotomayor despite his belief that she will vote “left of center.”  Graham is defending his stance by arguing that presidents deserve some deference when it comes to their judicial nominees.   Graham’s view used to be the prevailing norm among most Senators – but it is no longer the case.

Note that it is not unusual for members of the Judiciary Committee to differ along ideological lines.  Unlike other Senate committees that deal with more “bread and butter” issues, such as tax or spending,  that can be disaggregated and parceled out to states, the issues addressed by the Judiciary Committee, such as judicial appointments – are less amenable to log-rolling and compromise.  One either supports the nominee or does not – there’s no way to divvy up the benefits or costs. For this reason, senators who self-select to become members of the Judiciary Committee tend to be the more ideologically extreme than the party as a whole.

We can see this by comparing the ideological rankings of Judiciary Committee members as based on their voting records to the average of their party as a whole.  Remember, the scores range from 1 (most conservative) to -1 (most liberal).

The mean score for the Democratic Party in the 110th Senate (2007-08) is -.47.  However, the mean score for Democrats serving on the Judiciary Committee (not counting Arlen Specter because he voted as a Republican last year) is -.57.  This does not include Al Franken, who hasn’t voted enough to calculate a voting score as yet (but whom Simon Jackman, using his own voting scale, has placed on the liberal end of the Senate voting scale.)

Similarly, the mean score for all Senate Republicans, based on voting in the previous session, is .45.  But for Republicans on the Judiciary Committee, it is .57.

So, we see that Democrats on the Judiciary Committee are, on average, more liberal than the Democratic Party as a whole, while Republican committee members are more conservative.  So we shouldn’t be surprised at all if the Committee votes the Sotomayor nomination up on an almost straight party line vote.

By the way, here are the members of the Senate Judiciary Committee:

Democratic Members – Judiciary Committee

Patrick J. Leahy
Chairman, D-Vermont

Herb Kohl

Dianne Feinstein

Charles E. Schumer
D-New York

Russell D. Feingold

Richard J. Durbin

Benjamin L. Cardin

Sheldon Whitehouse
D-Rhode Island

Amy Klobuchar

Edward E. Kaufman

Arlen Specter

Al Franken

Republican Committee Members

Jeff Sessions
Ranking Member, R-Alabama

Orrin G. Hatch

Charles E. Grassley

Jon Kyl

Lindsey Graham
R-South Carolina

John Cornyn

Tom Coburn

If the committee does split along party lines, it will continue a pattern of committee voting dating back to the Roberts nomination. In 2006, when Republicans controlled the Senate, the Judiciary Committee voted along straight party lines 10-8 to forward Justice Samuel A. Alito Jr.’s nomination to the full Senate, where he was later confirmed by a 58-42 vote, with only four Democrats in favor.

In 2005, Chief Justice John G. Roberts Jr. passed the Judiciary committee with a 13-5 vote, with three of eight Democrats supporting him. He was confirmed in the Senate by a 78-22 margin, with half the Democrats voting for him and half against.

However, although the Judiciary Committee has always been a more ideologically divided committee, that partisan division has become more pronounced in recent years.  It used to be that when it came to nominees for the Supreme Court, there was a greater willingness among senators to take the Graham route and defer to the president.  In this regard, both Sen. Charles E. Grassley of Iowa and Orrin G. Hatch of Utah have said they will vote against Sotomayor. If so, it would be their first “no” votes on a Supreme Court nominee.  The switch in philosophies is perhaps not a coincidence, given that, as a Senator, Obama voted against Roberts and Alito.

In an interview, Grassley defended his decision not to defer to Obama by noting that the Senate had changed: “I think it’s a whole new ballgame, a lot different than I approached it with [Justice Ruth Bader] Ginsburg and [Justice Stephen G.] Breyer.” (As I noted in a previous post, Ginsburg and Breyer – Clinton’s two nominees – were confirmed by 96-3 and 87-9 margins, respectively.)

Prior to this decade, Supreme Court justices who won confirmation usually had the backing of most of the Senate. Justices John Paul Stevens, Antonin Scalia and Anthony M. Kennedy all won confirmation by unanimous votes. Justice David H. Souter was confirmed by a 90-9 vote in 1990.  The exception, of course, was the highly charged debate over Clarence Thomas, who was confirmed by a 52-48 vote in 1991.  Nor am I including those nominees who were defeated in a Senate vote – see my previous post for my discussion of those candidates.)

The increasingly partisan debate over judicial nominees reflects the convergence of two trends that I have discussed before in this blog: the widening ideological gap between the two parties, and the increasing tendency of the courts to take a more activist approach in their rulings, making them a more potent policymaking tool.  Both Senate sides recognize this, and it is why I argued in my previous post that Republicans ought to vote against Sotamayor, and Democrats for her.  So far, both sides seem inclined to do just that.  Note, however, that at least five Republicans in addition to Graham – none of them on the Judiciary Committee – have indicated they will vote for Sotamayor when the full Senate considers her nomination.

At this stage, given my estimate that the over/under on the full Senate vote stands at 31, I may win my own “It’s the Fundamentals, Stupid” t-shirt.

Should Republican Senators Oppose the Sotomayor Nomination?

Yes, they should.

Not because she isn’t qualified – by almost all accounts, she is very well qualified – smart, well versed in the law, and possessing a solid judicial temperament.  Her opinions are, according to those who have read them, meticulously drafted. The American Bar Association, which historically takes on the task of evaluating nominees’ qualifications for the federal courts, gave Sotomayor their highest rating.  This comes after the ABA committee reviewed all the court rulings of which she has been a part.

Nor is it the case that she committed major gaffes during the confirmation hearings before the Judiciary Committee.  Indeed, those of you who listened or watched the hearings were likely struck, as I was, by the equanimity with which she responded to her questioners, even when they pressed her.  She avoided – as all nominees do now – tipping her hand on any of the controversial issues, such as abortion, and was quick to distance herself from Obama’s justification for voting against John Roberts’ nomination to the court, saying she didn’t agree with Obama’s emphasis on empathy.  She also essentially disavowed her controversial comments regarding the relative wisdom of Latinas vs. white males.  All in all, it was a stellar performance that provided almost no ammunition for her critics.

So, why should Republicans vote against her?  For the same reason that Democrats should support her. Because she will almost certainly constitute a reliable liberal vote – most likely the most liberal vote, along with Ruth Bader Ginsburg – on the Court.  Many of you will recall that, during his confirmation hearing, John Roberts famously used a baseball metaphor to describe a justice’s role, saying:  “Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”  What Roberts did not say – but which anyone who has played or watched the game knows – is that strike zones vary considerably from umpire to umpire.  And Sotomayor’s strike zone is very likely to tilt to the Left.

How can we be sure?  There are two pieces of evidence.  First, those who have studied her judicial rulings (and I have not in any depth) tell me that, on cases in which there is room for discretion in her rulings, she leans consistently left.  This is not always true; on criminal justice cases, for example, she tends to be more conservative.  But on the whole, her jurisprudence can best be described as liberal.

The second bit of evidence comes from research done by political scientists Jeff Segal and Albert Cover, who devised a test, based on newspaper editorials, to predict how nominees will rule once they are on the Court.  Essentially, the Segal-Cover system uses newspaper editorials to place a nominee on an ideological scale ranging from 0 – most conservative – to 1, most liberal.  Based on his analysis, Segal says Sotomayor scores near Ginsburg’s 0.68.  That would make her, along with Ginsburg, the most liberal judge on what is a predominantly conservative court.  (For comparative purposes, Breyer scores a .48, and Stevens is at .25. As noted below, Stevens has moved Left in his years on the Court,  so that this score no longer accurately characterizes his vote.  On the conservative end, Thomas scores .16, Roberts .12, Alito .10, and Scalia is a O!  Kennedy – the swing voter who holds the Court’s balance of power, is scored .37.  Souter scored .33, so Sotomayor will, if confirmed, move the Court Left.

Of course, the Segal-Cover score is not foolproof, since it is based on editorials written before the nominee is confirmed. Justices – see David Souter! – sometimes turn out to be different than what they seemed. (George Bush the First nominated Souter in the belief that he was a conservative, only to see him join Harry Blackmun and John Paul Stevens as a consistent member of the court’s liberal bloc.)  Other justices – see Stevens – gradually changed their voting tendencies – in Stevens’ case becoming more liberal – the longer they stayed on the bench.

Nonetheless, the Segal-Cover system has proved to be an effective predictor of nominees’ voting tendencies on the bench. (Segal indicates that there is a correlation of .79 between the ideological score and justices’ subsequent vote on the bench.  A perfect correlation would be 1, so this is a pretty effective predictor.) And it suggests that Sotomayor will tend to vote against Republican’s core values.

But, some of you will undoubtedly object, don’t Republicans risk losing the Latino vote if they vote against Sotomayor?   Keep in mind that Latino voters are disproportionately located in a few states: California, Florida, Texas, Arizona and Illinois.  Most Republican senators have very little to worry about in terms of a Latino backlash, although some – think Mel Martinez in Florida, undoubtedly will support Sotomayor.   But for most Republicans who have few Latino voters, the threat of a Latino reaction to a no vote on Sotomayor is not something about which they worry.

There is an additional consideration here: it is in Republicans’ interest to lay down a marker, in anticipation of a later court fight if, and when, either Stevens and/or Ginsburg (who is in poor health) step down.  It makes that fight easier if Republicans show their resolve now, in this first opportunity to signal their willingness to oppose Obama’s nominees.

Based on this, I’ve set the Over/Under on the Republican votes against Sotomayor at 31.  It is time to hand out another “It’s the Fundamentals, Stupid” t-shirt. We know Sotomayor will be confirmed – but by what margin?  Send me your predictions – otherwise I’ll be forced to go back to seclusion to work on the book!  And there’s so much to blog about – what was Palin thinking (and who are the Republican frontrunners for 2012)?  Will health care reform pass – in my lifetime?   Why are Obama’s poll numbers dropping, and what does it mean?

Tell me whether you are taking the over or the under, and – for those with a spine – what the final Republican opposition will be.

For background information, here is the vote for the last six Supreme Court justices:

Nominee….Nominated By….Roll CallOpposing Party Yea Votes
Alito………….Bush 43…………58-42………….4 Dems
Roberts……..Bush 43…………78-22………….22 Dems
Breyer……….Clinton…………..87-9……………33 Repub
Ginsburg……Clinton……………96-3……………41 Repub
Thomas………Bush 41………..52-48………….11 Dems (1 Repub opposed)
Souter………..Bush 41………..90-9……………46 Dems

And here is a chart, based on data compiled by Charles Franklin, showing the opposition to Supreme Court nominees dating back to the 1950’s (Note: it doesn’t include the Alito vote).

Voting starts now!