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 emocrat
Charles Schumer, chairman of the Senate Judiciary subcommittee on
the courts, says he will hold "at least three more hearings"
on various issues having to do with judicial nominations — before
the full Judiciary Committee holds any hearings to consider actual
nominations sent to the Senate by President Bush.
The process
could add months to the time it takes to confirm judges for the
federal district and circuit courts. The delay could also allow
more time for opposition to specific nominees to develop, both in
the Senate and among the liberal interest groups that closely follow
judicial nominations.
Schumer has
been a leading advocate of changing the criteria senators use to
evaluate prospective judges. In the past, many senators believed
it was unacceptable to vote against a qualified nominee simply because
a senator disagreed with the nominee's judicial philosophy. "Unfortunately,"
Schumer said Tuesday at the first in his series of hearings, "this
unwillingness to openly examine ideology has sometimes led senators
who oppose a nominee to seek out non-ideological disqualifying factors,
like small financial improprieties from long ago, to justify their
opposition."
Now, with a
new Republican administration choosing nominees for the courts,
Schumer would like to create a system in which senators can vote
against qualified nominees solely on the basis of philosophical
differences. "It's high time we returned to a more open and
rational consideration of ideology when we review nominees,"
he said.
The hearing
got off to a slightly rocky start when first witness Lloyd Cutler,
who served as White House counsel to Presidents Carter and Clinton,
disagreed with Schumer's proposition. Cutler read from a study of
the issue that he helped prepare in 1996. "It would be a tragic
development if ideology became an increasingly important consideration
in the future," the report read. "To make ideology an
issue in the confirmation process is to suggest that the legal process
is and should be a political one. That is not only wrong as a matter
of political science; it also serves to weaken public confidence
in the courts."
After Cutler
— who testified along with former Bush White House counsel C. Boyden
Gray, who also disagreed with Schumer — the subcommittee heard from
six experts who were equally divided on the use of ideology in the
confirmation process. In a move that some Republicans felt added
a glaringly political note to the proceedings, the three scholars
chosen by Schumer — Laurence Tribe of Harvard Law School, Cass Sunstein
of the University of Chicago, and Marcia Greenberger of the National
Women's Law Center — were the same experts who gave Democratic senators
advice at a retreat in late April. According to a New York Times
report, Tribe, Sunstein, and Greenberger told senators that "the
nation's courts were at a historic juncture because, they said,
a band of conservatives around Mr. Bush was planning to pack the
courts with staunch conservatives."
Tribe urged
Democrats to fight the White House. "For this committee to
engage in unilateral disarmament...is really insanity," he
said. Sunstein, arguing that senators could rightly oppose conservative
candidates, suggested that the Clinton administration had not placed
liberals on the bench. "I can't think of a single [Clinton]
nominee to the lower courts who can be thought of as a liberal,"
he said. And Greenberger warned of the possible overturn of Roe
v. Wade.
The three witnesses
called by Republicans — Stephen Presser of Northwestern University
Law School, Eugene Volokh of UCLA, and Clinton Bolick of the Institute
for Justice — all suggested that the current system of confirming
nominees has worked fairly well. The system is a self-moderating
one, they argued, pointing out that the courts are split nearly
50-50 between Republican judges and Democratic judges.
Presser also
emphasized the intention of the Founders when they created the system
by which the Senate offers its "advice and consent" to
the president on top-level appointments. Presser quoted from Federalist
76, in which Alexander Hamilton argued that Senate consent was
needed to be "an excellent check upon a spirit of favoritism
in the president, and to tend greatly to prevent the appointment
of unfit characters from state prejudice, from family connection,
from personal attachment, or from a view to popularity."
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