All questions are legitimate,” Sen. Charles Schumer, D-NY, says about the upcoming confirmation hearings for a new Supreme Court justice.
“[Republicans] are going to try to get away with the idea that we’re not going to know their views,” Schumer added during a weekend interview with The New York Times. “But that’s not going to work this time.”
Certainly not if Schumer has anything to do with it. And he most certainly will: This is the moment he has been working toward for years.
In June 2001, just weeks after the defection of Sen. James Jeffords, I-VT, gave Democrats control of the Senate, Schumer convened a hearing titled “Judicial Nominations 2001: Should Ideology Matter?”
The idea behind the hearings was this: Many senators believe that, in an ideal world, a confirmation hearing should examine a judicial nominee’s fitness and qualifications for the bench. If the nominee is fit and qualified, then he or she should be confirmed. But in the real world, senators often oppose nominees for reasons that have nothing to do with fitness or qualifications and everything to do with ideology. Feeling constrained from openly voicing their ideological objections, the senators look for some small blemish in the nominee’s record that can then be exaggerated into a reason for voting against the candidate.
“Legitimate considerations of ideological beliefs seem to have been driven underground,” Schumer said at the hearing back in 2001. “It is not that we don’t consider ideology; it is just that we don’t talk about it openly.”
And because they are hesitant to speak openly, Schumer argued, senators look for other reasons to vote against nominees they disagree with.
“Unfortunately, this unwillingness to openly examine ideology has sometimes led senators who oppose a nominee to seek out non-ideological disqualifying factors, like small financial improprieties from long ago, to justify their opposition,” Schumer said. “This, in turn, has led to an escalating war of ‘gotcha’ politics that, in my judgment, has warped the Senate’s confirmation process and harmed the Senate’s reputation.”
The Washington Post’s E.J. Dionne, writing a few weeks before Schumer’s hearing, put it a bit more plainly. Back in 1987, when liberals wanted to kill the nomination of Robert Bork, Dionne wrote, “the consensus...held it illegitimate to block a president’s nominee to the high court solely because of his judicial philosophy. Liberals couldn’t simply oppose Bork. To block him, they had to trash him.”
And trash him they did. Of course, they won, but only, Dionne noted, “at the cost of strengthening the will of the conservative movement.”
Now, the combination of a strengthened conservative movement and a general public distaste for Bork-like inquisitions has made it infinitely more difficult to trash a qualified high court nominee. And besides, the tactic might not work in every case. What if it was nearly impossible to portray the nominee as extreme? What if the nominee had a clean-as-a-whistle life history? What if Sen. Edward Kennedy, D-MA, simply ran out of invective? (Unlikely, yes, but at least a theoretical possibility.)
How could Schumer and his allies kill a candidate who is obviously qualified, who doesn’t have a nanny problem or any other personal peccadillo, and who cannot be reasonably portrayed as a right-wing nut?
That’s where “Judicial Nominations 2001: Should Ideology Matter?” came in. Schumer used the hearing to lay the foundation for making ideological objections legitimate grounds for opposing nominees.
To bolster his case, he invited three liberal legal scholars — Laurence Tribe, Cass Sunstein and Marcia Greenberger — to testify. Tribe provided the high point of the session when he made fun of those old-fashioned questions senators used to ask nominees. Chief among them was: Will you follow the law?
“Duh!” Tribe said. What kind of idiot would ask that? Any nominee in his right mind would say yes, of course.
“But ask a question like ‘How will you go about deciding which precedents should be overturned and which shouldn’t...and what would it take to make it justifiable to overrule Roe v. Wade?’” Tribe said, and things can get sticky. That’s when Democratic senators ought to get tough.
“When a nominee says, ‘Oops, I can’t talk about that because that might have something to do with what I will do as a judge,’” Tribe told Schumer, “it seems to me at that point you ought to really scratch your head and say, ‘Of course it would have something to do with what you would do as a judge; I wouldn’t be asking you otherwise.’”
So look for similar words — or perhaps the same words — to come out of Charles Schumer’s mouth when President Bush’s nominee, whoever he or she is, appears before the Senate Judiciary Committee.
Yes, that will throw out the window the manner in which, for example, Bill Clinton’s two picks for the Court, Ruth Bader Ginsburg and Stephen Breyer, were confirmed. But who cares? Ideology matters — above all else.