Very few things—in law or in life—surprise me anymore. But I was shocked Monday afternoon when Sen. Charles "Chuck" Grassley (R-Iowa) announced that he will vote "no" on the Supreme Court nomination of Judge Sonia Sotomayor. When he so votes this morning before the Senate Judiciary Committee, it will be Sen. Grassley's first "no" vote on a Supreme Court confirmation in his 29 years in the Senate.
This means that Sen. Grassley voted "yes" on Ruth Bader Ginsburg and Stephen Breyer, both of whom were nominated (and confirmed) during the Clinton years, and both of whom currently anchor the Court's "liberal" wing. And Sen. Grassley voted "yes" for the first woman ever to serve on the Court, Sandra Day O' Connor, but not until famously raising doubts about her too-liberal views on abortion rights. O'Connor, remember, was a 1981 Reagan appointee and remains today one of the most beloved Justices of all time.
During her confirmation hearings back in 1993, much was made of Ginsburg's link to the American Civil Liberties Union, where she had served as a member of the Board of Directors before serving as a federal appeals court judge. Much more was made about Ginsburg's card-carrying ties, in fact, than was made about Judge Sotomayor's link, which was far more tenuous, to the Puerto Rican Legal Defense and Education Fund. Both candidates, Ginsburg and Sotomayor, doggedly refused to specifically answer substantive questions about controversial legal topics. So, for that matter, did nominees John Roberts and Samuel Alito. Sen. Grassley voted for them, too.
Ginsburg's ties to the embattled liberal group—back in 1993 it was the poster-child for liberalism, remember-- didn't stop Grassley from acceding to a Democratic president's request. Grassley voted for Ginsburg. And he voted, one year later, for Stephen Breyer, the last Supreme Court pick of the 20th Century. At the time, Sen. Grassley praised then-President Clinton for choosing someone, namely Breyer, "with judicial experience and who understands the limited role of a judge in our democracy."
If you can identify for me any substantive differences in the relative "understandings" of Judge Sotomayor in 2009 and Judge Breyer in 1994 about the "role of a judge in our society" I will bake you cookies for a year. I really will. If anything, Judge Sotomayor has been significantly more conservative in her rulings, and her ideology, than was Breyer back when he was a 1st U.S. Circuit Court of Appeals judge. Sotomayor, remember, was a Bush I appointee back in 1992. Sen. Orrin Hatch (R-Utah) helped shepherd her nomination through the Senate. Now, Sen. Hatch, too, is a "no" vote.
Unlike most of his colleagues, Sen. Grassley voted for Robert Bork. When President Obama this past spring placed Judge Sotomayor's name into nomination for Court spot, replacing David Souter, Sen. Grassley immediately mentioned Bork's demise in 1987, and the nasty confirmation of William Rehnquist to be Chief Justice a year earlier, as examples of partisanship on the Committee. He also expressed regret and remorse for the Souter selection. You may recall that Justice Souter, like Judge Sotomayor, was a Bush I appointee, a fellow Republican nomination.
That was then. This is now. Gone is the deference Sen. Grassley has given the past four Presidents; gone is the benefit of the doubt he's given to nominees who are both more conservative, and more liberal, than Judge Sotomayor. "My vote must be based on the nominee's respect for and adherence to the Constitution and judicial restraint," Sen. Grassley announced in a press release. "I question if Judge Sotomayor will be able to set aside personal biases and prejudices to decide cases in an impartial manner and in accordance with the Constitution."
"At her confirmation hearing," Sen. Grassley continued, "I was not convinced that Judge Sotomayor understands the rights given to Americans under the Constitution, or that she will refrain from expanding or restricting those rights based on her personal preferences. I am not certain that Judge Sotomayor won't allow those personal beliefs and preferences to dictate the outcome of cases before her." And then he seemed to suggest that his vote on Sotomayor was a direct consequence of, and reaction to, his disappointment with Justice Souter's tenure on the Court.
"Nearly 20 years ago," Grassley wrote, "then Judge David Souter talked during his confirmation hearing about courts 'filling vacuums' in the law. That concept greatly worried me, because courts should never fill voids in the law left by Congress. Since Justice Souter has been on the Supreme Court, his decisions have proven that he does believe that courts do indeed fill vacuums in the law. My vote has come back to haunt me time and time again. So, I've asked several Supreme Court nominees about courts filling vacuums at their hearings. Her lukewarm answer left me with the same pit in my stomach I've had with Justice Souter's rulings…"
Judge Sotomayor doesn't need Sen. Grassley's vote. She is going to be confirmed by the Senate next week and she is endorsed by the Committee on Tuesday. But it says something very profound about the man, and the current state of partisan politics on Capitol Hill, that a generation of nonpartisanship on Supreme Court nominees has come crashing to an end with a woman who clearly is competent, dedicated and, based upon her record, much more centrist and practical than most of her recent predecessors.
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.