The Hearings: Double Standard Watch – The Ninth Justice

National Journal

A perennial feature of judicial confirmation hearings is watching Senate Democrats and Republicans alike invert their approaches to various issues depending on the party of the nominating president. Look for some of that during next week’s Judiciary Committee hearings on Judge Sonia Sotomayor.

Sotomayor is expected to emulate the last seven nominees to face confirmation hearings — five picked by Republican presidents and two by Democrats — by refusing to disclose her specific views on issues likely to come before the court. And she should refuse, for reasons that I will discuss in a future post.

But will the Democrats who pronounced themselves mightily frustrated by the unresponsive ducking and dodging of John Roberts and Samuel Alito in 2005 and 2006 be similarly annoyed when Sotomayor ducks and dodges next week? Don’t bet on it.

And will the Republicans who lauded the content-free testimony of Roberts and Alito take a similarly benign view when Sotomayor parries their efforts to pin down her views? Don’t bet on that, either.

Consider, for example, the positions of Sen. Dianne Feinstein, D-Calif., and then-Sen. Joe Biden, D-Del., in 2005 on the need for nominees to be forthright. In explaining her opposition to Roberts to reporters, Feinstein focused on his deft evasions of questions about privacy, women’s rights and other issues. "So he really lost [your vote] in the hearings?" a reporter asked. "In my view, he did," Feinstein replied.

Similarly, after hearing Roberts claim that his conservative policy memos as a Reagan Justice Department staffer did not necessarily reflect his personal views, Biden complained to National Journal: "He didn’t answer the questions. I had to bet either my hopes or my fears. I thought, quite frankly, he was somewhat disingenuous."

It seems most unlikely that Feinstein or Biden will take similar offense when Sotomayor does more or less what Roberts did.

Across the aisle, Republicans including Sens. Sam Brownback of Kansas and Lindsey Graham of South Carolina took a benign view of Roberts’ refusal to show his cards. Brownback rhapsodized about "sitting there and listening to a brilliant constitutional scholar discuss the Constitution"; Graham asserted that Roberts "will be a justice for the ages."

Next week, I predict, Judiciary Committee Republicans will be complaining that Sotomayor didn’t answer their questions. And most or all Democrats will be delighted with non-answers and full of praise for the nominee’s brilliance.