From the ultimate Washington insider journal, The Hill, to the stridently conservative pages of the New York Post, pundits are noting that the impending Supreme Court nomination battles promise to provide high profile opportunities for New York’s senior senator, Democrat Charles Schumer.
The Post, of course, is expecting the worst, warning readers against “Schumer’s Agenda” and repeating a story that first surfaced on the Drudge Report that the senator was overheard on a cell phone call on an Amtrak train from Washington to New York saying, “We are contemplating how we are going to go to war over this.”
The war gaming should come as no surprise in the current political climate. A more telling statement on Schumer’s views came in more forthright fashion, when he said on ABC’s “This Week,” “All questions are legitimate. What is your view on Roe v. Wade? What is your view on gay marriage? They are going to try to get away with the idea that we’re not going to know their views. But that’s not going to work.”
The issue of what questions can be asked of potential Supreme Court nominees and what they should be expected to reveal has long been controversial. Prior to World War II, it was rare for a nominee even to appear at confirmation hearings to testify and when testimony became routine, the conceit was that it was an exercise in evaluating a nominee’s overall fitness and qualifications.
The process took on a more political cast with Lyndon Johnson’s failed attempt to elevate Associate Justice Abe Fortas to chief justice and Richard Nixon’s ill-fated nominations of Southerners Clement Haynesworth and Harold Carswell, but even then senators cloaked their ideological objections by finding other disqualifying factors.
It was Ronald Reagan’s nomination of Robert Bork, which failed, and George H.W. Bush’s successful appointment of Clarence Thomas during which the partisans really took off their gloves.
Yet during the same era, O’Connor won confirmation by answering every question that probed her views on controversial matters by saying, “I do not believe as a nominee I could tell you how I would vote.” David E. Rosenbaum of The New York Times noted this week that Antonin Scalia won unanimous confirmation despite the fact that he refused to offer an opinion even on Marbury v. Madison, the seminal 1803 ruling that established the Supreme Court’s authority to strike down laws as unconstitutional. David Souter’s lack of a judicial paper trail was viewed by the elder Bush as a way to ease the confirmation process.
But the right is very unhappy with Souter and does not want a repeat of that approach. They are pressing with all their clout for an outspoken conservative with a substantial public record on the hot button social issues they care most about.
Their goal oddly dovetails with Schumer’s perspective. In 2001, when the Democrats enjoyed a brief sojourn in the majority, Schumer in his role as chairman of the judiciary subcommittee on courts, convened a hearing “Judicial Nominations 2001: Should Ideology Matter?”
At that hearing, he declared that the philosophical predisposition of judicial nominees was fair game for questioning in the confirmation process, even if what he said was a broad consensus on that point among senators was rarely publicly acknowledged.
“Legitimate considerations of ideological beliefs seem to have been driven underground,” he said. “It is not that we don’t consider ideology; it is just that we don’t talk about it openly.”
So Schumer plans to get specific in his questioning. Even as Minority Leader Harry Reid and ranking judiciary committee Democrat Patrick Leahy enter into elaborately civil discussions with their Republican counterparts at meetings at the White House, Schumer and others like Ted Kennedy of Massachusetts ought to be preparing for the contingency of hand-to-hand combat in committee hearings.
It’s unclear whether Pres. George W. Bush is willing to bet his second term agenda on satisfying the Christian right with polarizing Supreme Court fights. It is also unclear whether the Democrats can retain the right to filibuster should the president put forward an unacceptable choice.
But still, the hearings are important. Republicans lost important ground with the American public with their antics during the Terri Schiavo tragedy. Contempt for the basic principle of a woman’s right to choose will not play well, and could wake up many voters who have grown complacent about basic liberties.
Democrats could lose in the confirmation fight—nominees might not even be willing to answer their questions. But the positioning of key issues could help progressives win in the longer term. The New York Post dismisses Schumer’s motives by saying he’s the head of the Democratic Senatorial Campaign Committee. There may be a silver lining in all this yet.