As you know, I appreciate politicians who run against type, who defy the boxes that the idiots who guide the incessant partisan wars demand that they stay within.

For instance, I like Sen. Bob Casey of Pennsylvania for the simple fact that he’s a pro-life Democrat. He refuses to fit in the narrow little box.

And that means I like Lindsey Graham a lot, because he’s all about thinking an issue through and trying to do the right thing rather than what partisanship demands.

He did it again today:

Date: 07/28/2009

The right vote for me and, I believe, the country

by Senator Lindsey Graham

Today, I voted in the Senate Judiciary Committee for Judge Sonia Sotomayor’s nomination to the Supreme Court.  I understand the path of least resistance for me would be to vote no.  But I feel compelled to vote yes.  This is the right vote for me and, I believe, the country.  Here’s why:

Elections Have Consequences
I told Judge Sotomayor in the Judiciary Committee hearing that if Senator McCain had won the election, she probably would not have been nominated.  Senator McCain would have chosen a qualified jurist with a more conservative background – someone similar to Chief Justice John Roberts or Miguel Estrada.  Judge Sotomayor is definitely a more liberal judge than a Republican president would have nominated, but elections have consequences.

Judge Sotomayor is Very Qualified
Judge Sotomayor is one of the most qualified nominees to be selected for the Supreme Court in decades. She has seventeen years of judicial experience, twelve of those on the Second Circuit Court of Appeals.  I have reviewed her record closely.  She follows precedent and has not been an activist judge that would disqualify her from office.  She has demonstrated left-of-center reasoning but within the mainstream – a fact other Republicans on the Judiciary Committee have openly acknowledged.

She has an outstanding background as a lawyer. She was a prosecutor for four years in New York. Her record of academic achievement is extraordinary – growing up under very difficult circumstances, being raised by a single mother, going to Princeton, being picked as the top student there, and doing an extraordinary job in law school at Yale.  She has received the highest rating of ‘well qualified’ by the American Bar Association for her nomination to the Supreme Court, which was an important reason why I supported Justices John Roberts and Samuel Alito.

The “Obama Standard” – Wrong for the Nation and Judiciary
One of the things I chose not to do was to use the “Obama Standard” when it came to casting my vote.

As Senator, Barack Obama voted against both Justices Roberts and Alito.  He used the rationale that they were well qualified, extraordinarily intellectually gifted, but the last mile in the confirmation process was the heart.  He argued that in the final five percent of controversial cases that may change society, a Senator needs to look and see what is in a judge’s heart.

I totally reject this line of reasoning.  It runs contrary to more than 200 years of the Senate’s constitutionally-mandated role of providing “advice and consent” for judicial nominees.

If the Senate moves to a Barack Obama-style confirmation process where we explore another person’s heart, we are going to drive people away from wanting to become members of the judiciary.  Who would want to come before the Senate and have us try to figure out what is in his or her heart?  Can you imagine the questions that would be asked?  It will have a tremendously negative effect on the future recruitment of qualified candidates to be judges.

Also, one thing to note about Judge Sotomayor was that during the Judiciary Committee hearings on her nomination – she publicly disagreed with this “Obama Standard.”  She made it clear that trying to decipher what was in a nominee’s heart is not a good standard for selecting judges.

Return to the “Qualification Standard” for Supreme Court Nominees
I believe the Senate and nation should once again go back to the judicial standard for Supreme Court nominees which served our country well for over 200 years – the “Qualification Standard.”  Are the nominees qualified?  Do they have good character?  Do they present an extraordinary circumstance – having something about their life that would make them extraordinary – to the point they would be unqualified, e.g. they are related to the president or they tried to bribe someone for the position?

There was a time in this country, not long ago, where a conservative judge, such as Justice Antonin Scalia, received a 98-0 vote from the Senate.  Every Democrat who voted for Justice Scalia could not have been fooled as to what they were getting.  They were supporting an extremely qualified, talented, intellectual man who was qualified for the job but had a conservative philosophy different from most Democrats.

There was a time in this country where a Justice, such as Justice Ruth Bader Ginsburg, who is clearly left-of-center, received a nearly-unanimous vote in the Senate.  Republicans who voted for Justice Ginsburg had to know what they were getting.  They were supporting someone who was very talented, extremely well-qualified, and incredibly smart – but who was also general counsel for the American Civil Liberties Union.  They knew her liberal philosophy but understood that President Clinton had won the election and earned the right to make the nomination.

What happened to those days?

The Balance of the Court Does Not Change
On balance, I do not believe the Supreme Court will dramatically change in terms of ideology due to her selection.  Justice Souter, whom I respect as an individual, has been far more liberal than I would prefer. Quite frankly, on some issues, Judge Sotomayor may be more balanced in her approach than Justice Souter, particularly when it comes to the War on Terror, the use of international law, and potentially the Second Amendment.

Judge Sotomayor received the backing of Ken Starr, the conservative special prosecutor during the Clinton Administration.  Even critics such as conservative commentator and radio talk show host Bill Bennett have made positive statements about her nomination.

Bennett told CNN, “Let me make a prediction. I’m actually probably a little more conservative than Mitch McConnell. I think this will be a very different record than David Souter’s. I think she (will) surprise people. I think she is larger than this caricature of her… I think this is going to be an interesting judge, and not one who will always displease conservatives.”

I am not voting for her believing I know how she will decide a case.  I expect she will align with the liberal side of the court based on philosophy not because she is a judicial activist.

I am voting for her because I find her to be well-qualified, because elections matter, because I believe the “Obama Standard” is harmful to the judiciary, and because the people who have served along her side for many years find an extraordinary woman in Judge Sotomayor.  I found the same.

As a member of the minority party in the Senate, I have a responsibility to look hard at the nominees sent to the Senate by President Obama.  Where I can, I will support his nominees.  But I will not abandon the right to say no.  I will not abandon the right to stop, in an extraordinary circumstance, a nominee who is bad for the country and unworthy of being confirmed.  But Judge Sotomayor does not rise to that standard and for that reason I chose to support her nomination.

I would not have chosen her if I had been able to make the nomination.  But I understand why President Obama chose her, and I believe it is the right choice to vote for her confirmation to the Supreme Court.

Sen. Graham is one of those people — like Joe Lieberman — who causes me to think harder about a position if I find myself disagreeing with him, because I know he’s thought really hard about it. And he’s a really smart guy.

So after today, I would have to have really powerful reasons to oppose Sonia Sotomayor’s nomination. On the one hand we have partisan Democrats, who we know will vote for her without thinking. On the other hand we have partisan Republicans, who will oppose her without thinking. Then we have Lindsey Graham, who I know has studied the matter carefully — a lot more so than I have (I’m busy looking for a job), which of course is what representative democracy is all about — and decided to vote for her. To me, that means a lot more than just one senator’s vote.

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