The hardest question in the confirmation hearings for Sonia Sotomayor is one the nominee can’t answer.

Not because she doesn’t know the law or can’t offer a satisfactory explanation for a phrase in a speech. Rather, it’s because this question doesn’t really involve her, although it has everything to do with the number of votes she will get.

The question concerns the degree of deference that senators should show to a president’s choice for the Supreme Court. More specifically, why should Republican senators weighing President Obama’s nominee give him more leeway to name justices to his liking than then-Sen. Obama was willing to accord President Bush when he voted against both Bush nominees?

As the hearings got under way, Republican senator after Republican senator raised this question. Democrat after Democrat ignored it.

South Carolina Republican Lindsey Graham put it best: “You’re probably going to decide cases differently than I would,” he told Sotomayor. “So that brings me back to, what am I supposed to do, knowing that?”

The Constitution provides that the president appoint justices “by and with the advice and consent of the Senate.” So there is constitutional space, and, indeed, a duty, for the Senate to consider not only technical qualifications but judicial philosophy and the overall balance of the high court. The fact that senators are weighing a lifetime appointment rather than a Cabinet post dials up the intensity with which the Senate should scrutinize and judge a nominee.

In short, advice and consent doesn’t mean roll over and play dead.

At the same time, as Graham put it, “elections matter.” If the test for confirmation were simply whether the senator would have chosen the same nominee if he or she were president, the answer would be a preordained, partisan vote. This would be merely a nuisance in the case of a Senate controlled by the same party as the president. It would be a recipe for gridlock in situations of divided government.

Add to this constitutional muddle the fact that the current president — the first senator to reach that office in nearly half a century — is in the unusual position of having voted against confirming two Supreme Court nominees.

The sweeping phrases of the Constitution provide scant guidance about the degree of deference that presidential nominees should be accorded, but senators considering President Obama’s choice have Sen. Obama’s example to guide them.

In 2005, Obama said he was “sorely tempted” to vote to confirm John Roberts as chief justice, saying that “there is absolutely no doubt in my mind” that Roberts was intellectually and temperamentally qualified for the job.

But, Obama added, “what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

You don’t have to be cynical to think politics was at play, too; in fact, you just have to read The Washington Post, which reported that Obama’s Senate chief of staff, Pete Rouse, warned him that a vote for Roberts could cripple his presidential ambitions.

And it’s possible to look at Roberts’ performance on the court and say that Obama’s worst fears were realized: Roberts is no humble umpire.

But it’s also true that Obama’s reported remarks to Rouse — that if he were president, he wouldn’t want his nominees turned down on purely ideological grounds — were prescient.

As Graham told Sotomayor, “I can assure you that if I applied Sen. Obama’s standard to your nomination, I wouldn’t vote for you, because the standard that he articulated would make it impossible for anybody with my view of the law and society to vote for someone with your activism and background when it comes to lawyering and judging.”

The judicial confirmation wars are like conflict in the Middle East, with a never-ending cycle of attacks and recriminations over grievances past. Sotomayor ought to be confirmed by an overwhelming vote, and perhaps his colleagues will heed Graham’s counsel that “elections matter.”

Judging from the tone so far, the more likely outcome is a near party-line vote. In that case, the president won’t have only himself to blame — but he will have himself to blame in part.

Ruth Marcus’ e-mail address is marcusr(at symbol)

© 2009, Washington Post Writers Group


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