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July 22, 2009

The Ironies of Empathy

Kevin E. Dayhoff

As last week’s Senate Judiciary Committee hearings on the nomination of Judge Sonia Sotomayor to the Supreme Court quickly becomes a distant summer memory, the ranking Republican member, Alabama Sen. Jeff Sessions assured that the nomination will get a full Senate vote on her confirmation before the Senate goes on recess August 7.


In an Associated Press news story by Julie Hirschfeld Davis, it was reported: “Sessions, who declared he still had ‘serious concerns’ about Sotomayor, said he wouldn't support any attempt to block a final vote on confirmation and didn't foresee any other Republican doing so.”


A National Public Radio story noted that, “GOP Sen. Lindsey Graham on Monday (July 13,) called Sotomayor's confirmation a foregone conclusion, barring a ‘complete meltdown’ Tuesday during questioning by the Senate panel.”


Last week, no meltdown occurred.


According to an article entitled, “To Confirm Sotomayor, Yawn. Rinse. Repeat,” by Liz Halloran for NPR: “If Democrats on the Senate Judiciary Committee intended to finish off Sotomayor's critics by inducing boredom — and many privately suggested that was the point — consider the mission accomplished, or just about.”


In the midst of the boredom induced by the hearings, the national media coverage barely reported that this is “the third time Congress (has considered) her nomination and the second time she (has appeared) face to face with Sen. Jeff Sessions...,” according to an article on The Huffington Post last May.


“Back in … (in September, 1997,) when she was being considered for a post on the United States Court of Appeals for the 2nd Circuit, Sotomayor faced a wide variety of questions on topics ranging from mandatory minimum sentencing, rights for homosexual inmates, the historical relevance of the Constitution, and her personal respect for Justice Clarence Thomas.


“Many of the pointed questions – though not all – came from Sessions, who a dozen years later finds himself the ranking member of the Judiciary Committee, a post that could greatly influence the tone, tenor and outcome of Sotomayor's Supreme Court confirmation hearings.”


Today, all the Republican members of the committee are political veterans and “know how to count.” Even the most inexperienced observer of political theatre knows that Judge Sotomayor will be confirmed.


Considering the erosion of support for the Republican Party by the fastest growing voter block in the nation, Hispanics, the Republicans had to walk a fine line between political reality and their core conservative constituency back home.


Indeed, a number of polls have indicated that Judge Sotomayor only enjoys a few points less than 50 percent of the nation’s voters.


However, what has also received very little air play is the added plot twist that Senator Sessions, who took over for Pennsylvania Senator Arlen Specter after his much ballyhooed defection from the Republican Party, was once on the receiving-end of a bitter personal attack on the part of the Democrats on the Judiciary Committee.


It happened when he was nominated, in 1986, by President Ronald Reagan, “for a federal judgeship,” according to an article by the Congressional Quarterly in May.


“His was only the second judicial nomination in 48 years to be killed by the Judiciary Committee, which on a 9-9 vote refused even to let his name go to the floor for a vote. Opponents accused him of ‘gross insensitivity’ on racial issues.


“Sessions was quoted then as saying that the Senate on occasion had been insensitive to the rights and reputation of nominees. After joining the committee, he remarked that his presence there, alongside several of the members who voted against him, was a ‘great irony.’”


While on the subject of irony, if you will recall, it was “empathy” that President Barack Obama considered to be the critical quality for a judge to be nominated.


In the end, with the exception of possessing a great amount of empathy; if the Democrats did not have such an overwhelming majority in the Senate, one can only be sure that any Supreme Court nominee with Judge Sotomayor’s background and qualifications would run the high risk of not being confirmed.


After all, an Hispanic nomination for the federal bench, with even better qualifications, Miguel Estrada – who was nominated by President George W. Bush, in 2001 – had his opportunity to be appointed denied when the Democrats filibustered his confirmation vote.


In a recent article, NPR reported: “‘The Hispanic element of this hearing is not lost’ on the panel, Graham said, noting, however, that ‘Estrada never had a chance to have this hearing.’”


Of course, the Democrats never suffered any consequences with the Hispanic vote as a result.


The same cannot be said for Mr. Estrada.


In spite of being eminently qualified and considered by many to possess the caliber of a future Supreme Court jurist, according to an August 8, 2005, article in The New Yorker by Elsa Walsh: “Estrada withdrew his name twenty-eight months after being nominated. During the confirmation struggle, Estrada’s wife miscarried; in November, 2004, she died, of an overdose of alcohol and sleeping pills. The death was ruled accidental by the medical examiner. (Karl) Rove said that Mrs. Estrada had been traumatized by the nastiness of the process.”


In spite of the much hailed fact that Judge Sotomayor has been accepted as being on the fast track to be the first Hispanic to sit on the Supreme Court, the traditional mainstream media has barely – if at all – mentioned how the Democrats treated Mr. Estrada’s nomination.


However, NPR reported that Carlos Ortiz, the former president of the Hispanic National Bar Association, said: “If there are hard feelings harbored about that, well, she had nothing to do with it…”


Obviously empathy is only reserved for the benefit of Democrats.


Kevin Dayhoff writes from Westminster. E-mail him at


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