On June 26, 2001, Senator Charles Schumer of New York published an astonishing Op-Ed column in the New York Times in which he argued that ideology should be considered as one factor in the confirmation of federal judges. The column was astonishing not for its sentiments, which had been expressed by others, but for its blunt frankness, and for the fact that it was coming from a member of the Senate Judiciary Committee, which was about to pass judgment on scores of the President’s choices for the federal bench.
“The not-so-dirty little secret of the Senate,” Schumer wrote, “is that we do consider ideology, but privately…. If the President uses ideology in deciding whom to nominate to the bench, the Senate, as part of its responsibility to advise and consent, should do the same in deciding whom to confirm. Pretending that ideology doesn’t matter–or, even worse, doesn’t exist–is exactly the opposite of what the Senate should do.”
Schumer’s thinking should not be misunderstood. He is not advocating that ideology be the sole standard for judging nominees–only that it be discussed openly and honestly. Schumer says that other factors are equally important to evaluate, including integrity, temperament, intellectual excellence and “the racial, ethnic, gender and experiential diversity of the particular bench.” Schumer is not proposing any litmus test, which is what he was falsely accused of by a New York Post editorial and by Paul Gigot in the Wall Street Journal. In his Times Op-Ed, Schumer wrote that one of the factors in confirmation decisions should be “the composition of the courts at the time of nomination”–a reference to the philosophical balance on each of the thirteen courts of appeal and the Supreme Court.
In the confirmation process, ideology should matter in direct proportion to how much it mattered in the President’s thinking when he made the nomination. Since Bush said during the campaign that Antonin Scalia and Clarence Thomas are his favorite judges, this sent a vivid message about his judicial role models, and how his mind works.
But the ambition of this article is larger than just Schumer’s point about ideology. It is also about the President’s determination to keep nominating extremists to pack the federal bench. It is about the Senate Judiciary Committee’s constitutional responsibility to advise and consent on judges, and not be a rubber stamp. It is about the hypocrisy of Republican senators who blocked some superb nominees during the Clinton years because they didn’t approve of their ideas–and who now cry foul when the same scrutiny is applied to their choices. And it is about the coming war over the nomination of Miguel Estrada to the US Court of Appeals for the DC Circuit, and the emerging opposition–from former co-workers as well as Latinos–to this clone of Clarence Thomas.
Schumer’s position was already shared by Judiciary Committee Democrats Ted Kennedy and Richard Durbin. Now the committee has rejected both Priscilla Owen and Charles Pickering for the Court of Appeals for the Fifth Circuit, suggesting that Schumer’s premise that ideology matters has found enough converts to prevail–at least on some days.
Pickering of Mississippi was easy to oppose, since he was hostile to voting rights and civil rights, and was even troubled by the well-settled legal principle of “one person, one vote.” But getting all ten Democrats, now in the majority on the Judiciary Committee, to be synchronized on a regular basis is a tricky and fragile thing. Dianne Feinstein is a loner who is a reliable liberal vote only when abortion is at issue. The quirky campaign finance reformer Russell Feingold cast the deciding vote to confirm John Ashcroft as Attorney General within the committee; his Democratic colleagues are now counting on the power of atonement. Joe Biden argued vigorously all through the 1990s that ideology should not matter in evaluating judicial nominees. The Judiciary Committee chair, Patrick Leahy, is well liked and a solid liberal vote. But he is sometimes a little gun-shy about partisan conflicts. He can overreact to attacks from President Bush or from Karl Rove, the Dr. Frankenstein in the judge-making laboratory, mixing test tubes of politics, polls and demographics.