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.