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Date: 07/22/2009

Senator Graham to Vote for Confirmation of Judge Sotomayor

Posted by Kevin, Communications Director


Senator Lindsey Graham Statement on Voting in Support of Judge Sotomayor
United State Senate
July 22, 2009

Mr. GRAHAM:

Madam President, I take to the floor to inform the Senate and my colleagues about how I intend to vote on the pending nomination of Supreme Court nominee Judge Sotomayor. I understand the path of least resistance for me personally would be to vote no. That is probably true anytime you are in the minority party and you lose an election. But I feel compelled to vote yes, and I feel this is the right vote for me and, quite frankly, for the country in this case.

Why do I say that? Well, elections have consequences. I told Judge Sotomayor in the hearing that if I had won the election, even though I wasn't running, or Senator McCain had, she would probably not have been chosen by a Republican. We would have chosen someone with a more conservative background -- someone similar to a Chief Justice Roberts or Miguel Estrada. She is definitely more liberal than a Republican would have chosen, but I do believe elections have consequences.

It is not as though we hid from the American people during the campaign that the Supreme Court selections were at stake. Both sides openly campaigned on the idea that the next President would be able to pick some justices for the Supreme Court. That was known to the American people and the American people spoke.

In that regard, having been one of the chief supporters of Senator McCain and one of the chief opponents of then-Senator Obama, I feel he deserves some deference on my part when it comes to his first selection to the Supreme Court. I say that understanding, under our Constitution, I or no other Senator would be bound by the pick of a President. But when you look at the history of this country, generally speaking, great deference has been given to that selection by the Senate.

While I am not bound to vote for Judge Sotomayor -- voting no would be the path of least political resistance for me -- I choose to vote for Judge Sotomayor because I believe she is well qualified.

We are talking about one of the most qualified nominees to be selected for the Supreme Court in decades. She has 17 years of judicial experience. Twelve of those years she was on the Second Circuit Court of Appeals. I have looked at her record closely. I believe she follows precedent; that she has not been an activist judge in the sense that would make her disqualified, in my view. She has demonstrated left-of-center reasoning but within the mainstream. She has an outstanding background as a lawyer. She was a prosecutor for 4 years in New York. Her record of academic achievement is extraordinary -- coming up from very tough circumstances, being raised by a single mother, going to Princeton, being picked as the top student there, and doing an extraordinary job in law school. She has a strong work ethic. That all mattered to me. It is not just my view that her legal reasoning was within the mainstream. She received the highest rating by the ABA -- the American Bar Association -- as "well qualified."

The reason I mention that is not because I feel bound by their rating, but during the Alito and Roberts confirmation hearings for the Supreme Court under President Bush, I used that as a positive for both those nominees. I feel, as a Republican, I can't use it one time and ignore it the other. So the fact that she received the highest rating from the American Bar Association made a difference to me.

Her life story, as I indicated before, is something every American should be proud of. If her selection to the Supreme Court will inspire young women, particularly Latina women, to seek a career in the law, that is a good thing, and I hope it will.

On balance, I do believe the Court will not dramatically change in terms of ideology due to her selection. Justice Souter, whom I respect as an individual, has been far more liberal than I would prefer in a judge. I think Justice Sotomayor will not be any more liberal than he.

On some issues, quite frankly, she may be more balanced in her approach, particularly when it comes to the War on Terror, the use of international law, and potentially the Second Amendment. But time will tell.

I am not voting for her believing I know how she will decide a case. I am voting for her because I find her to be well qualified, because elections matter, and because the people who have served along her side for many years find an extraordinary woman in Judge Sotomayor, and I confirm their findings.

What standard did I use? Every Senator in this body, at the end of the day, has to decide how to give their advice and consent. One of the things I chose not to do was to use Senator Obama's standard when it came to casting my vote for Judge Sotomayor. If those who follow the Senate will recall, Senator Obama voted against both Justice Alito and Justice Roberts, and he used the rationale that they were well qualified; that they were extraordinarily intellectually gifted; but the last mile in the confirmation process, when it came to Judge Roberts, was the heart. Because 5 percent of controversial cases may change society, one has to look and see what is in a judge's heart.

I totally reject that.

If the Senate tries to have a confirmation process where we explore another person's heart, I think we are going to chill out people wanting to become members of the judiciary. Who would want to come before the Senate and have us try to figure out what is in their heart? Can you imagine the questions we would be allowed to ask? I think it would have a tremendous chilling effect on the future recruitment of qualified candidates to be judges. Let me say this: Judge Sotomayor agreed with me and Senator Kyl that trying to find out what is in a judge's heart is probably not a good idea.

Senator Obama also indicated that judicial philosophy and ideology were outcome determinative when it came to Judge Alito. If I used his standard, knowing that her philosophy is different than mine, her ideology is different than mine, she would have no hope of getting my vote. I daresay not one Republican, using the Obama standard, would provide her with a confirmation vote. So I decided to reject that because I believe it is not in the long-term interest of the Senate or the judiciary.

I went back to a standard I think has stood the test of time -- the qualifications standard. Is this person qualified to sit on the Court? Are they a person of good character? Do they present an extraordinary circumstance -- having something about their life that would make them extraordinary to the point they would be unqualified?

There was a time in this country where a Justice, such as Justice Ginsburg, who is clearly left of center, received 90-something votes in this body. There was a time in this country, not long ago, where a conservative judge, such as Justice Scalia, received over 95 votes from this body. Every Democrat who voted for Justice Scalia could not have been fooled as to what they were getting. They were getting an extremely qualified, talented, intellectual man who was qualified for the job but had a different philosophy from most Democrats. Someone on our side of the aisle who voted for Justice Ginsburg had to know what they were getting. They were getting someone who was very talented, extremely well qualified, incredibly smart, and who was general counsel for the ACLU. You had to know what you were getting, but you understood that President Clinton, in that case, had the right to make that decision.

What happened to those days? I would say to my Democratic colleagues -- and I am sure Republicans have made our fair share of mistakes when it comes to judges -- that this effort, not too far in the past, of filibustering judges, declaring war on the Judiciary, has hurt this body. In my opinion, the politicization of our Judiciary has to stop for the good of this country, for the good of the Senate, and for the good of the rule of law in America.

What am I trying to do today? I am trying to start over. The political "golden rule" is: Do unto others as they did unto you. The actual Golden Rule is: Do unto others as you would have them do unto you. I hope we can get back to the more traditional sense of what the Senate has been all about. That brings me back to the recent past.

This body was on the verge of blowing up. Our Democratic colleagues were filibustering President Bush's nominees for the appellate court, and even the Supreme Court, in a fashion never known by the body. There was an effort by frustrated Republicans to change the rules so all you needed was a majority vote to get on the bench -- the Supreme Court. This body, for a couple hundred years, had not gone down that road.

A Gang of 14 was created -- 7 Republicans and 7 Democrats -- and they tried to find a better way; they tried to get the Senate back to a more reasoned position. That Gang of 14 -- the 7 Democrats and 7 Republicans -- said filibustering judges should only be done in an extraordinary circumstance. We left that up to the Members of the body, but we were focusing on someone who was clearly out of the mainstream when it came to judging.

If you look at Judge Sotomayor's record for 17 years, it is left of center but not the record of someone who is wearing a robe but under the robe is an activist. An extraordinary circumstance would be somebody clearly not qualified -- a pick that is political in nature alone.

I am glad to say my colleagues on the Democratic side and the Republican side who were part of that group -- and they are still here -- did not see an extraordinary circumstance. I would like to compliment Senator Sessions, who did a very fine job in this hearing. He has acknowledged there is nothing extraordinary about this nominee for the Republican Party to try to block her through filibustering. I think that is a correct assessment.

But then it comes down to the individual vote. I have tried to indicate the best I can that I desire, as a Senator, to find a new way to start over and get back to a Senate that is more rational in its approach when it comes to confirmations.

Having said that, to my colleagues who vote no, I understand your concerns and there are things about this nominee that are troubling. The speeches she has given in the past are troubling because I think they embrace identity politics, something I don't embrace. The "wise Latina" comment that has become famous, that she believes more often than not that a wise Latina woman with her experience and background would reach a better conclusion than a White male -- we had a long discussion about how that does not set well with most Americans and that is not what we want to be expressed by people trying to become Supreme Court nominees.

But having said that, do we want to exclude from consideration people with boldness, who are edgy? Do we want milquetoast nominees who are afraid to speak their minds and to disagree with their fellow citizens? I think not.

Her speeches, while troubling, have to be looked at in terms of her record. When we look at this 17-year record we will find someone who has not carried out that speech. I will take her at her word.

She rejected this idea of picking winners and losers and was very mainstream in her understanding of the role of a judge. She understood the difference between a policymaker and a judge. I will take her at her word. I cannot understand her heart any more than she can understand mine. The speeches are troubling, but I guarantee I have made some speeches that are probably troubling to people on the other side. I hope they would look at everything I have done, not just the speeches I may have given.

Her time as a lawyer -- this is very important to me. During the Alito and Roberts hearings, they were pushed hard about some legal memos they wrote for Ronald Reagan espousing conservative thought and how that made them dangerous. How dare you write a memo about the Civil Rights Act that somebody on the other side may disagree with?

Lawyers who advocate positions should not feel chilled in terms of picking their clients if they hope to be a judge. The worst thing we could do is take a lawyer's advocacy position, their clientele, and hold it against them for being a judge.

She was a board member of the Puerto Rican Legal Defense Fund. Some people say we should not talk about her time as a lawyer or even mention that organization. I do not believe that at all because when I am looking at this nominee, I am looking at every aspect of her life.

During her time as a board member, the board and the organization advocated positions I think are out of the mainstream, that I do not agree with, but certainly are legitimate positions to take -- such as taxpayer-funded abortion. I could not disagree with her more. I don't think most Americans want their taxpayer dollars to be used to fund abortion. The Puerto Rican Legal Defense Fund argued to the court that if we do not allow taxpayer-funded abortion for poor women, it is a form of Dred Scott kind of oppression. I could not disagree more, but that is not the point. Disagreeing with me is OK.

What I hope will happen in the future is, if a conservative gets into the White House, and we pick someone who was on the other side of that case, we will have the same understanding I do: being an aggressive advocate for causes I disagree with does not disqualify them from being a judge, if otherwise they have demonstrated the capability.

The advocacy role of a lawyer is unique. I have represented people with whom I disagreed. I have represented people accused of child molesting. I have been a criminal defense lawyer. There is nothing more noble in our system than making the government prove their case regardless of how one feels about the defendant.

The fact that she was an advocate, choosing causes I disagree with, does not, in my opinion, disqualify her because, when I looked at her record, I did not see a judge who was continuing to be a lawyer for the Puerto Rican Legal Defense Fund. I saw a judge who felt bound by the law.

Temperament -- for those Members who have practiced in court, I do not like a bully judge, and I know it when I see it. I don't mind being pressed, I don't mind being challenged, I don't mind being interrupted. I just do not want to be belittled in front of my clients for no good reason.

There were some things said about Judge Sotomayor, anonymous comments from lawyers who were asked by the Federal Almanac how they rate the temperament of people on the Second Circuit, and Judge Sotomayor had some things said that were, frankly, disturbing. But I looked at the other part of the record, the people who served with her as a prosecutor, the defense attorneys who wrote on her behalf, people who served with her on the court, and I found on balance that her temperament does not disqualify her. Frankly, I found somebody a lot of people from different backgrounds admire.

Ken Starr, one of the strongest conservatives in the country, found her to be a qualified person who would do a good job; Louis Freeh, the former Director of the FBI, is someone who came and vouched for her character and her qualities as a person.

When I look at the record, the anonymous comments by lawyers who were asked by Federal Legal Service did not win the day, nor should they have.

I do not know what is ahead for this country when it comes to picking Supreme Court Justices. I don't know what openings may occur and when they will occur. I know this. Elections have to matter. I don't want to invalidate elections by disagreeing with someone against whom I ran or I opposed politically because when the election is over, everything has to change to some extent. I am not bound to agree with every pick of President Obama, but when it comes to trying to show some deference, I will. I will try to do better for him than he was able to do for President Bush.

I don't want to turn over the confirmation of judges to special interest groups on the left or the right, and that is where we are headed if we don't watch it. Special interest groups are important, they have their say, they have every right to have their say, but we can't make every Supreme Court vacancy a battle over our culture.

I am trying to start over. I have only been here one term plus a few months. But since I have been here, I have been worried about where this country is going when it comes to judges. I happen to be here at a time when we are about to change the rules of the Senate in a way it had never been done in 200 years. I was new to the body, but I was understanding of the law and how our system works well enough to know that I did not want to be part of that. I had not been here long, but I understood what would happen to this country if we changed the rules of the Senate, even though people felt frustrated and justified to do so.

As a member of the minority, I promised President Obama that I would look hard at his nominees. I will try to help him where I can, but I will not abandon the right to say no and to stop, in an extraordinary circumstance, a nominee who I think would be bad for the country and would dramatically change the power of a branch of the government, the Supreme Court, that is very important to every American.

As to my colleagues who find a different decision on the Republican side, I can understand and appreciate why they did not feel comfortable giving their confirmation votes to Judge Sotomayor. But I am trying to look beyond this moment, look to the future and come up with a reason to support her that will create a different way of doing business, that will help the judiciary, the Senate, and the country as a whole.

Senator Sessions did an outstanding job. Senator Leahy did a very good job. People wanted to know more about her at the hearings, but she is limited, like every nominee, in terms of what she can say.

One last comment about Judge Sotomayor. She is 1 year older than I am. I grew up in the Deep South. I am the first person in my family to go to college. I lost my parents when I was in college and had a 13-year-old sister to raise.

She grew up in the Bronx, came to this country from Puerto Rico. Her mother joined the Army. She lost her dad when she was very young. Her mother raised Judge Sotomayor and her brother under difficult circumstances. Her brother is a doctor. She has been able, Judge Sotomayor, to excel academically and reach the highest rung of America's legal system. That, to me, is a hell of a story. Nobody in my family ever expected me to be a United States Senator -- including myself. Only in America can these things happen.

I choose to vote for Judge Sotomayor looking at her from the most optimistic perspective, understanding I could be wrong but proud of the fact that my country is moving in the right direction when anybody and everybody can hit it out of the park. I would not have chosen her if I had to make this choice as President, but I understand why President Obama did choose her and I am happy to vote for her.

I yield the floor.





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