WASHINGTON - - In a possible preview of the debate over President Barack Obama's Supreme Court pick, the nominations of U.S. District Judge Andre Davis of Baltimore to the Court of Appeals and state Labor Secretary Thomas Perez to head the Civil Rights Division at the Justice Department were cleared Thursday for confirmation by the full Senate.
The Senate Judiciary committee, which will hold confirmation hearings for Supreme Court nominee Sonia Sotomayor later this summer, approved Davis and Perez on bipartisan votes of 16-3 and 17-2, respectively. Final action by the full Senate has not been scheduled for either Marylander, but those familiar with the process said it would likely be sometime after July 4, at the earliest.
Senators sparred over Obama's desire to make "empathy" an important dimension in picking judges. Chairman Patrick Leahy of Vermont, a Democrat, tweaked Republicans by noting that President George H. W. Bush used the word "empathy" to describe Clarence Thomas when he chose him for the court in 1991.
Sen. Jeff Sessions of Alabama, senior Republican on the panel, called "empathy" a form of judicial bias. He said he was "troubled" by Obama's first batch of judicial nominees.
Republicans won't let Obama pack the federal bench "FDR-style," with judges who "have the potential, if they're activists, to promote political agendas, oftentimes agendas that can't be won at the ballot box and passed by Congress," Sessions said.
The panel's first vote on an Obama court nominee, Judge David Hamilton of Indiana, split along party lines, 12-7, with Republicans unanimously opposed. By contrast, the two Maryland nominees won the support of a majority of committee Republicans, despite strong opposition from Sessions, who voted against both.
The coming fight over Sotomayor, in which Republicans could find themselves squeezed between their conservative base and a desire to avoid further alienating Hispanics and other minority voters, might have influenced some Republican senators to favor Davis, an African-American, and Perez, whose parents emigrated from the Dominican Republic, after rejecting Hamilton, who is white.
"To the extent they are going to vote 'no' for [Sotomayor], they don't want to be seen as reflexively voting no" on minority nominees, said Carl Tobias, a University of Richmond law professor.
Sessions, a former federal judge, said Davis "has been criticized for being hostile to law enforcement." The 4th U.S. Circuit Court of Appeals in Richmond, Va., for which Davis has been nominated to fill a seat traditionally reserved for Maryland but left vacant for nearly 10 years, has reversed the Baltimore judge six times for suppressing evidence from police, he noted.
Sessions said that when Davis was questioned about the reversals, he "said he wouldn't argue with the Court of Appeals, he would accept their decision. ... So it would appear that he had not given that much thought to these opinions when he wrote them."
In response, Democratic Sen. Benjamin L. Cardin of Maryland said it was unrealistic to expect Davis, who has served for nearly 10 years as a judge, not to have had some of his rulings overturned.
"I would just urge my colleagues that if you use that standard that you can't be reversed, I'm afraid we'll never get a District Court judge to serve at the appellate level," Cardin said.
Perez, who once worked as a lawyer in the division he's been nominated to head at the Justice Department, drew Republican fire for his association with CASA de Maryland. Perez once served on the board of directors of the immigrant advocacy organization, including a term as president.
Republican Sen. Jon Kyl of Arizona said CASA's efforts to advise day laborers of their rights "obviously promote the illegal hiring of people who weren't entitled to be here." He also described as "very troubling" Perez's advocacy of translators and other forms of bilingual assistance for patients who don't speak English.
Kyl, whose state is 25 percent Hispanic, then voted in favor of Perez. He noted that, unlike a judgeship, a Justice Department job is "not a lifetime appointment."