Opinion: Sotomayor hearings: Graham comes out swinging

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Sen. Lindsey Graham, the Republican from South Carolina who said Monday in his opening statement that, barring “a meltdown,” Judge Sotomayor would be confirmed, seemed bent on getting her to melt down today. He peppered Sotomayor with short questions, interrupted her frequently and sighed into his microphone in a manner reminiscent of then-Vice President Al Gore during his presidential debate with George W. Bush.

He asked for a definition of “legal realism,” he asked her for a definition of “strict constructionism,” he asked her for a definition of “originalist.”

He wondered if she considered herself an adherent to any of those schools of legal thought.

“Again I don’t use labels,” said Sotomayor.

Graham asked her whether she believed the constitution was “a living breathing, evolving document” and what she believed was “the best way for society to change legitimately.”

“Do you think Roe vs. Wade changed society?” asked Graham, who proceeded to interrupt her when it became clear she was not going to give a simple answer to the question.

“Roe vs. Wade looked at the Constitution and decided that the Constitution is applied to a claimant’s right, applied … ”

“Is there anything in the Constitution that says a state legislature or the Congress cannot regulate abortion or the definition of life in the first trimester?” asked Graham, essentially paraphrasing what the court held in Roe vs. Wade in 1973. “Is there anything written in the document about abortion?”

Sotomayor answered, “The word abortion is not used in the Constitution, but the Constitution does have a broad provision concerning a liberty provision under the due process …”

At that point, Graham interrupted her again: “And that gets us to the speeches. That broad provision of the Constitution has taken us from no written prohibition protecting the unborn, no written statement that you can’t voluntarily pray in the schools, and on and on and on, and that’s what drives us here quite frankly…. A lot of us feel that the best way to change society is to go the ballot box and elect someone, and if they’re not doing it right, get rid of them through the electoral process. And a lot of us are concerned that unelected judges are quick to change society in a way that is disturbing. Can you understand how people feel that way?

“Certainly,” replied Sotomayor.

And then Graham got personal.

“Let’s talk about you,” he said. “I like you….”

But lots and lots of lawyers do not like her, he said, and he read some excerpts from the Almanac of the Federal Judiciary, where lawyers anonymously rate judges. Quoting, he said, “She is a terror on the bench, she is temperamental, excitable, she abuses lawyers, she lacks judicial temperament, she behaves in an inappropriate manner, she will attack lawyers for making an argument she does not like, she can be a bit of a bully….You stand out like a sore thumb, in terms of your temperament. What is your answer to these criticisms?”

Sotomayor remained unruffled. No meltdown ensued.

“I do ask tough question in oral arguments,” she said. “When I ask tough questions, it’s to give them an opportunity to persuade me that they’re right. …Some lawyers do find that our court generally is described as a ‘hot bench.’ It means they are peppered with questions; lots of lawyers who are unfamiliar with the process in the 2nd Circuit find that tough bench difficult and challenging.”

But Graham was not finished testing her on her temperament.

“If I may, judge, they find you difficult more than your colleagues. The only reason I mention this is that it stands out. … I never liked appearing before a judge who was a bully. … Do you think you have a temperament problem?”

“No, sir,” said Sotomayor. “I believe that my reputation is such that I ask the hard questions, but I do it evenly for both sides.”

Then Graham offered a thought: “For what it’s worth, judge ... obviously, you have accomplished a lot in your life. Maybe these hearings are a time for self-reflection.”

-- Robin Abcarian

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