Graham Decried Guilt By Association With Ginsburg, Alito But Not Sotomayor

08/15/2009 05:12 am ET | Updated May 25, 2011

One of the most memorable moments from Judge Sonia Sotomayor's second day of hearings before the Senate Judiciary Committee yesterday was the aggressive line of questioning from Sen. Lindsey Graham (R-S.C).

It was a performance filled with uncomfortable moments and, as Graham's critics allege, political contradictions.

The South Carolina Republican demanded to know if President Obama's nominee for the Supreme Court had a "temperament problem." It was an odd observation for Graham to make, according to several political observers, considering that Graham's best friend in the Senate -- the man for whom he worked tirelessly to get elected president -- Sen. John McCain is notorious for having a short fuse.

At another point, the senator asked Sotomayor to recite her now infamous "wise Latina" comment, claiming that he could not find the piece of paper on which he had written down the quotation. Democrats saw a blatant gambit for trying to create an embarrassing "YouTube moment" for Sotomayor.

The senator even told Sotomayor she had a reputation as a bully.

Although years earlier, when he was questioning Judge Samuel Alito during his Supreme Court nomination hearing, Graham had been incredulous that anyone would turn the Bush-nominee's personality into a political issue.

Finally, Graham made hay out of Sotomayor tenure on the board of the Puerto Rican Legal Defense Fund, a legal arm for the Hispanic community that has been made into a boogeyman of legal liberalism by the judge's critics.

"Are you familiar with the position that the fund took regarding taxpayer-funded abortion? The briefs they filed?" Graham asked.

Sotomayor noted that she "never reviewed those briefs."

"Well, in their briefs, they argued, and I will submit the quotes to you, that if you deny a low-income woman Medicaid funding, taxpayer funds, to have an abortion, if you deny her that, that's a form of slavery," Graham said. "Do you agree with that?"

"I wasn't aware of what was said in those briefs," Sotomayor said once more.

It was reflective of the line of questioning that Republicans on the Judiciary Committee pushed all day. But for Graham, the use of the PRLDF as a foil for Sotomayor, which he used that day before during an interview on Fox News, -- was a far more aggressive posture than what he had adopted with Alito. And it differed even more from how he approached the nomination of Justice Ruth Bader Ginsburg. The Clinton-appointee to the court, Graham once argued, shouldn't be judged based on the work she did for the ACLU, even though the civil liberties group pursued cases that he himself viewed as abhorrent.

As pointed out by a Democrat working on the Sotomayor nomination, here is a snippet of Graham's opening statement from Alito's confirmation hearing in 2006, in which he decries the guilt-by-association game played with Supreme Court nominees.

What is the proper role of a Senator when it comes to advising and consenting? I would argue that if we start taking the one or two cases we cherish the most and make that a litmus test, we have let our country down and we have changed the historical standard. Justice Ginsburg was the general counsel for the ACLU. If I am going to base my decision based on who you represented as a lawyer, how in the world could I ever vote for somebody that represented the ACLU? If I am going to make my decision based on whether or not I agree with the Princeton faculty and administration policies on ROTC students and quotas and I am bound by that, I will get killed at home. What Princeton does with their admission policies and whether or not a ROTC unit should be on a campus is an OK thing to debate; at least I hope it is OK. I think most Americans are going to be with the group that you are associated with, not the policies of Princeton. The bottom line is you come here as an individual with a life well lived. Everybody who seems to have worked with you as a private lawyer, public lawyer and as a judge admires you, even though they may disagree with you.


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