GOP Sen Martinez Defends Sotomayor

The video is over at Real Clear Politics for those interested, but here's what Florida's Republican Senator Mel Martinez had to say about Sonia Sotomayor:

CNN reported that Judge Sotomayor recently received a "big boost from the only Hispanic Republican in the Senate." Senator Mel Martinez (R-FL) said that, "For someone who is of Latin background, personally, I understand what she is trying to say. Which is, the richness of her experience forms who she is. It forms who I am, that does not mean that that she has allowed that to filter her opinions, at least not that I've seen so far."

Per the Associated Press, Martinez also believes that Sotomayor will be confirmed "with pretty good numbers."

Doing all the math, then, with Martinez seemingly backing Sotomayor, Maine's two Senators not particularly likely to support a filibuster of her nomination (it's hard to see how they come out in strong opposition to the nomination), and at least a handful of other Republicans likely to back the President's pick (seven of the current 40 Republican Senators have already voted to confirm Sotomayor), it's awfully difficult to count up to 41 votes to sustain a filibuster. Am I missing something?

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Don't pass up historic opportunities

A few thoughts came to mind when I read about the U.S. Supreme Court's ruling in Caperton v. Massey, which Jonathan covered here yesterday. The case involved a West Virginia Supreme Court judge who refused to recuse himself from a trial, even though the chief executive of one of the litigants had spent $3 million to help the judge get elected. In a 5-4 ruling, the Supreme Court found that due process requires a judge to recuse himself if large campaign contributions create the appearance of partiality.

Like Scarecrow at the Oxdown Gazette, I found the hackery of Chief Justice John Roberts' dissenting opinion revealing.

Mostly I was shocked to learn from this New York Times article that judges are still elected in 39 states. It's bad enough that money corrupts our elections for the legislative and executive branches. Judicial elections create opportunities for "legalized bribery" as well as incentives for judges to let public opinion unduly shape their interpretation of the law in high-profile cases.  

I agree with the Des Moines Register's editorial board:

The fact that it is difficult, if not impossible, to draw an ethical distinction between a bribe and a campaign contribution is a strong argument for why judges should not be elected. Period.

Iowa voters did away with judicial elections by approving an amendment to the state constitution in 1962. The governor appoints judges at all levels. The public has input through nominating commissions that evaluate potential appointees before forwarding a short list to the governor. In addition, judges can be removed either by the Iowa Supreme Court for disability or good cause, or by the voters through periodic retention elections.

We are fortunate that Iowans recognized the wisdom of scrapping judicial elections when the constitutional amendment was on the ballot. This page on the website of the American Judicature Society lists failed judicial reform efforts in numerous other states. As you can see, state legislators and voters have rejected similar proposals despite years of hard work by reform advocates.

Let this be a lesson for policy-makers at all levels to seize the chance to make big changes for the better, such as the currently favorable environment for health care reform. Opportunities to ditch deeply flawed but entrenched systems don't come around every year, every election cycle or even every decade.

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Elections and Judicial Integrity

Yesterday, the Supreme Court delivered a 5-4 decision in Caperton v. Massey that a judge must recuse himself from hearing a case where one of the parties to the case contributed a significant amount of money towards electing the judge -- significant both in its size and in relation to all of the money spent on the judge's behalf.

For both the majority and the dissenters, this case was about judicial integrity. Writing for the majority, Justice Anthony Kennedy (whose Court this appears to be these days), held that "there is a serious risk of actual bias--based on objective and reasonable perceptions--when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent." In the case at hand, one of the parties spent $3 million in independent expenditures to help elect the swing Justice on the West Virginia Supreme Court, whose opinion in the 3-2 case before the panel overturned a $50 million verdict against the company the litigant ran. When such a situation is allowed, Due Process is denied and the image of an impartial judiciary is wounded.

Chief Justice John Roberts, leading the four dissenting Justices, also believed that this case presented an issue of judicial integrity. Indeed, he began his dissenting opinion, "I, of course, share the majority's sincere concerns about the need to maintain a fair, independent, and impartial judiciary--and one that appears to be such." And yet, the Chief Justice continued, "I fear that the Court's decision will undermine rather than promote these values." Specifically, Roberts -- joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito -- stated that he feared an unadministrable standard like the one laid out by the Court, in which there is no bright line rule determining when an elected judge must recuse himself from a case in which one of his chief supporters is a litigant, will actually whittle away at the image of an impartial judiciary.

But I would throw this question out to the readers here at MyDD: What hurts this image of the judiciary more -- judges opting not to recuse themselves where their major supporters are appearing before their courts, or an attempt (even if an imperfect one) to address the reasonably perceived problem stemming from the apparent nexus between campaign expenditures and judicial decisions?

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Now *that* was mindless obstruction

I got a chuckle out of Thomas Beaumont's article in today's Des Moines Register, "Reason for vote against judge still eludes Grassley":

Iowa Sen. Charles Grassley said Wednesday he still cannot recall why he opposed Sonia Sotomayor's confirmation to a federal appeals court judgeship 11 years ago, even after searching the Congressional Record for answers. [...]

"I want to know why myself. I probably want to know why more than you want to know why," Grassley told reporters Wednesday when pressed to explain his past votes against Sotomayor.

"But we've looked in the record of the committee and the Congressional Record and there's no statement by me. So, I don't know why," he added.

Grassley was one of three Republicans on the Senate Judiciary Committee and 29 in the Senate to vote against Sotomayor's confirmation to the 2nd U.S. Court of Appeals in New York.

Grassley's memory lapse prompted me to search for reports on the reasons some Senate Republicans opposed Sotomayor in 1998. I could not find any articles discussing controversial decisions she had made as a district court judge.

I also learned that Sotomayor gave a speech in 1994 containing a statement about a "wise woman" that is similar to her 2001 remark that conservative commentators have been flogging. Greg Sargent reported that"though the 1994 speech was disclosed to Republican Senators as part of her confirmation for Court of Appeals in 1998, there's no sign that anyone objected to it in any way."

So, why did Grassley and 28 other Republican Senators vote against Sotomayor in 1998? My hunch is that the reason Grassley didn't enter a speech into the Congressional Record at the time is the same reason I can't find any reporting on the grounds for opposition to her: Republicans had no legitimate beef with her qualifications or her judicial rulings.

An article by Paul West of the Baltimore Sun supports my hypothesis:

President Bill Clinton's 1997 nomination of Sotomayor to the nation's second highest court was held up for a year by Senate Republican blocking tactics. At the time, analysts said that Republicans did not want her confirmation to go forward because it would put her in line for a Supreme Court seat.

That's the kind of reason I'd want to forget too if I were Grassley.

Senate Republicans used similar blocking tactics against many of Clinton's nominees, hoping to run out the clock on his presidency. They later complained about Democratic "obstruction" of judicial appointments, but at least Democrats gave reasons for opposing the worst George W. Bush nominees (for instance, judicial philosophy or specific decisions as lower-court judges).

To his credit, Grassley told reporters on yesterday's call that he is going into Judge Sotomayor's upcoming confirmation hearings with an open mind. Not that it matters, because Senate Republicans already know that they don't have the votes to block her elevation to the Supreme Court.

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Americans Overwhelmingly Like Sonia Sotomayor

Watching the cable nets it might seem as though as many people -- if not more -- oppose Sonia Sotomayor as support her, looking at the actual numbers it turns out that Americans overwhelmingly support her nomination to the Supreme Court of the United States. Here's the Associated Press:

Americans have a more favorable first impression of Supreme Court nominee Sonia Sotomayor than they did for any of President George W. Bush's choices for the high court, according to a new Associated Press-GfK poll.

Specifically, AP polling found that half the country supports Sotomayor's nomination, compared with just 22 percent who oppose it -- numbers that largely gibe with the data received separately by Gallup:

Americans are generally supportive of President Barack Obama's nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. A majority of Americans, 54%, say they would like to see the Senate confirm her to the Court, according to a May 29-31 USA Today/Gallup poll. Currently, 28% are against her confirmation and 19% have not yet formed an opinion.

With numbers like these, it's not hard to see why even Republican Senators are talking up the possibility that Sotomayor could receive 75 votes in the Senate. And certainly, with the overwhelming proportion of the country supporting rather than opposing her nomination, it's moving from difficult to nearly impossible to see a path to the GOP mustering up the votes necessary to keep her off the Court.

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