Ground Chuck: New York's other senator tries a different kind of borking.
BY PAUL A. GIGOT
Friday, June 29, 2001 12:01 a.m.
An old joke is that the most dangerous place to stand in Washington is between Chuck Schumer and a TV camera. After this week that goes double if you're one of President Bush's Supreme Court nominees.
As the other liberal senator from New York, Mr. Schumer has to try harder for sound bites. But he seems up to the task. His first act of "bipartisanship" in the new Democratic Senate has been to dictate a brazen revision of Senate standards for confirming federal judges. The point of his exercise is to justify a "no" vote based on what he calls "purely ideological grounds."
This should be bigger news. Mr. Schumer--acting on behalf of most Senate Democrats--is trying to institutionalize the "borking" of judicial nominees. And he doesn't want to use such typical yardsticks as experience or judicial temperament. He wants to reject judges based solely on their political views.
With this in mind, the senator invited liberal legal luminaries Cass Sunstein and Laurence Tribe to a hearing this week to provide some high-toned political cover. Democrats can't have voters thinking this is merely about power! Never mind that these are the same gents who advised a private Democratic Senate retreat on the fine points of intellectual borking earlier this year.
Their argument is that last November's election was a draw, the federal courts are already skewed right, and Mr. Bush wants to add more Scalias and Thomases. Democrats therefore have the right to blackball all conservatives.
The media have overlooked how breathtaking this grab for power is. Most reporters see judicial politics as a case of immoral equivalence: Republicans were tough on Clinton judges, so Democrats are now returning the favor.
But the facts are very different. Specific GOP senators, notably Jesse Helms, gave Bill Clinton's appointees a hard time. But then-Judiciary Chairman Orrin Hatch almost never did, much to the dismay of his GOP colleagues. (Some of them gave me an earful at the time.)
Both of Mr. Clinton's Supreme Court choices sailed through the Senate. For lower federal courts, 377 of Mr. Clinton's choices were confirmed, only five short of Ronald Reagan's two-term record. That was despite six years of a GOP Senate majority as wide as 55-45. Only one nominee was voted down.
Yet by Mr. Schumer's new "ideology" test, Republicans should have rejected nearly all of these nominees. Justices Ruth Bader Ginsburg and Stephen Breyer are only slightly less liberal than the late William Brennan. They both favor racial quotas, Roe v. Wade and more or less undiluted federal power. And Justice Ginsburg merely overturned 158 years of tradition to force women into the Virginia Military Institute.
No less a Democrat than former Clinton counsel Lloyd Cutler told the Schumer hearing he dislikes an ideology test. The current Supreme Court is already balanced, Mr. Cutler said, and elections tend to keep it that way over time.
But when I bounced that point off the amiable Mr. Sunstein in the Senate corridors, he replied, "I couldn't disagree more. There isn't one liberal on the current court." Hello? Most people think there are at least four, on many issues five.
In any event, as Arizona Republican Jon Kyl pointed out, what is "balance" anyway? Justices John Paul Stevens and Antonin Scalia traded their left and right stereotypes on flag-burning. And Justice Sandra Day O'Connor is conservative on states' rights but liberal on race.
Considering broad judicial philosophy is fair enough, but the Schumer standard will politicize the courts even more than they are now. Borking in the past at least required a legal paper trail. But Mr. Schumer is hinting he may now oppose nominees who refuse to answer specific political questions. Demanding such public fealty damages the judiciary's independence.
The Schumer standard also has the effect of repudiating a presidential election. Mr. Bush won only 48% of the popular vote, but that's still five percentage points more than Mr. Clinton won in 1992. Should Republicans have rejected his nominees? Mr. Bush made no secret, during last year's campaign, of his desire to appoint more Scalias. Al Gore tried to scare people about it every other day, but Mr. Bush still won.
This all sounds ominous for Mr. Bush, but it may also have a silver lining. Democrats are signaling they're going to bork anyone to the right of Larry Tribe, so the president might as well send up conservatives worth the battle.
Nominating Circuit Court Judge Emilio Garza would force Democrats to choose between Hispanics and feminists. If the Schumer Democrats reject him, send up Miguel Estrada (assuming Democrats ever confirm him to a seat on the D.C. Circuit). And if they reject him, send up Sam Alito, Michael Luttig or J. Harvie Wilkinson.
They can't keep rejecting everyone forever. In the latest Wall Street Journal/NBC News poll, voters favor by 45% to 38% confirming judges on qualifications over ideology. Southern Democrats may also sweat under the Schumer "ideology'' spotlight. Vetting judges for their political views could easily turn out to be bad politics.
Mr. Gigot is a member of The Wall Street Journal's editorial board. His column appears Fridays in the Journal and on OpinionJournal.com.
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