Bench Memos

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Schumer and Consultation


In an interview in the weekend edition of the Wall Street Journal, Senator Schumer repeats his call for President Bush to consult with Democrats before making a Supreme Court nomination and cites as a model Bill Clinton’s consultation with Senator Hatch prior to nominating Justice Ginsburg and Justice Breyer.  As I explained in this NRO essay 17 months ago, “the Clinton-Hatch example provides a striking contrast to today’s situation”:

Hatch (for whom I then worked) openly invoked the principle that the president was entitled to considerable deference on his Supreme Court nominees. For better or worse, his objection in practice to certain candidates was essentially personal — aimed at individuals whom Republicans disliked or who would create undue political difficulties for them — not jurisprudential. Clinton knew that he could work with Hatch and still nominate justices who were, from Clinton’s result-oriented perspective, indistinguishable from the candidates Hatch raised concerns about. The same is not possible for President Bush with Senate Democrats.

Senate Democrats have amply demonstrated that it would be pointless and counterproductive to confer with them. President Bush has twice been elected on promises to appoint judges who have the jurisprudential views of Justices Scalia and Thomas. Democrats have shown for more than four years that they will resort to unprecedented measures to block such judges. To consult with Democrats before making nominations — especially where the proposed consultation is so amorphous — would only give Democrats more fodder for their cannons. We told you, they will say, that Candidate X would be unacceptable.

There is, simply put, no sound judicial candidate whose nomination Democrats could be expected to pre-clear. As a body, on this matter Senate Democrats have adopted the extreme leftist perspective of Ted Kennedy. They want judicial nominees who will be their political allies, imposing through the courts what the Left cannot achieve through political processes.

Everything that has happened in the meantime bolsters my previous conclusions.  Among other things, Senator Schumer’s opposition to the nominations of both John Roberts and Samuel Alito makes clear that he is not someone President Bush can work with on Supreme Court nominations.  And the embarrassing performance of Schumer and his fellow Democrats at both confirmation hearings makes one wonder just what insights on quality judging they might be thought to possess.


Tags: Whelan


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