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 110^th 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
D-Wisconsin

Dianne Feinstein
D-California

Charles E. Schumer
D-New York

Russell D. Feingold
D-Wisconsin

Richard J. Durbin
D-Illinois

Benjamin L. Cardin
D-Maryland

Sheldon Whitehouse
D-Rhode Island

Amy Klobuchar
D-Minnesota

Edward E. Kaufman
D-Delaware

Arlen Specter
D-Pennsylvania

Al Franken
D-Minnesota

Republican Committee Members

Jeff Sessions
Ranking Member, R-Alabama

Orrin G. Hatch
R-Utah

Charles E. Grassley
R-Iowa

Jon Kyl
R-Arizona

Lindsey Graham
R-South Carolina

John Cornyn
R-Texas

Tom Coburn
R-Oklahoma

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.